812 F.2d 1302 (10th Cir. 1987), 85-2113, United States v. Chalan

Docket Nº:85-2113.
Citation:812 F.2d 1302
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Daniel CHALAN, Jr., Defendant-Appellant.
Case Date:March 03, 1987
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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812 F.2d 1302 (10th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,


Daniel CHALAN, Jr., Defendant-Appellant.

No. 85-2113.

United States Court of Appeals, Tenth Circuit

March 3, 1987

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Tova Indritz, Federal Public Defender (Peter Schoenburg, Asst. Federal Public Defender, with her on the brief), Albuquerque, N.M., for defendant-appellant.

Presiliano Torrez, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

Before BARRETT and SEYMOUR, Circuit Judges and SAM, District Judge. [*]

SEYMOUR, Circuit Judge.

Daniel Chalan, Jr., was convicted in a jury trial of one count of first degree murder in violation of 18 U.S.C. Sec. 1111 (1982 & Supp. III 1985), one count of robbery in violation of 18 U.S.C. Sec. 2111 (1982), and two counts of the use of a firearm during the commission of a crime of violence in violation of 18 U.S.C. Sec. 924(c) (Supp. III 1985). For the reasons set out below, we reverse in part and remand for further proceedings.

The facts are set out in detail with our discussion of the issues raised by defendant. In summary, the record establishes that on January 28, 1985, a convenience store within the Cochiti Pueblo in New Mexico was robbed. During the robbery, Elizabeth Haskins, the assistant store manager, was shot and bludgeoned to death. In its investigation, the police interviewed three witnesses who had been in the vicinity of the store prior to the robbery. These witnesses indicated that they had seen near the store four young Indian males who appeared to be intoxicated. One witness identified Daniel Chalan, a Cochiti Indian who grew up on the Cochiti Pueblo and lived there at the time of the robbery and murder. The police contacted him and asked him questions about the crimes. The primary evidence used against Chalan at trial was a confession made by him on the day of his arrest, January 30, 1985.

On appeal, Chalan contends that (1) the trial court erred in refusing to suppress certain statements that he made; (2) the trial court failed to inquire adequately into the bases of assertions by prospective defense witnesses of their Fifth Amendment privilege; (3) he was deprived of a fair trial by the Government's refusal to grant use immunity to certain defense witnesses; (4) the trial court erred in excluding certain hearsay statements; (5) the trial court failed to conduct an adequate voir dire; (6) he was denied equal protection of the laws by the Government's use of its peremptory challenges to strike all members of his race from the jury panel; and (7) the court's imposition of consecutive sentences for two violations of 18 U.S.C. Sec. 924(c) violated the Double Jeopardy Clause and was contrary to congressional intent. We reject all but

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the last two of these contentions. We conclude that Chalan has established a prima facie case of racial discrimination by the Government in its use of its peremptory challenges. We also hold that imposing consecutive sentences for two violations of section 924(c) violated the Double Jeopardy Clause under the circumstances of this case.


We first address Chalan's contention that the trial court should have excluded from evidence certain statements that he made to the police. On January 29, 1985, federal and local law enforcement officials attempted to contact Chalan to ask him questions about the convenience store robbery. The investigators went to the Cochiti Pueblo Community Center and spoke to the Pueblo Governor. They eventually contacted Chalan through a message conveyed to him by his mother, and asked him to meet them in the Governor's office at the community center. The message to Chalan may also have included a request from the Governor to appear at his office. In response to the message, Chalan arrived at the Governor's office, accompanied by his mother.

At the Governor's office, Chalan was questioned by an FBI agent, two investigators from the Bureau of Indian Affairs, an officer from the local county sheriff's office, the Governor, and Chalan's mother. Some of the officers were visibly armed. The interview was taped, and the officers photographed Chalan for purposes of assembling a photo array. At no time during the interview was Chalan arrested. Nor was he administered any Miranda warnings. After approximately one and one-half hours of questioning, the interview ended, and Chalan departed.

During the course of the interview, the investigators asked Chalan numerous questions concerning his knowledge of and possible involvement in the crimes committed at the convenience store. The officers explicitly informed Chalan at the beginning of the interview that he did not have to answer any questions, that he was not a suspect in the case, and that the officers merely wanted him to provide them with information. But the questioning was often accusatory. The investigators, the Governor, and Chalan's mother exhorted him to tell the truth. Nevertheless, no one threatened Chalan, no one mistreated him physically, and no one forced him to remain at the Governor's office. Throughout the January 29th interview, Chalan consistently denied any participation in the robbery and murder.

On January 30, 1985, after having conversations about the murder and robbery with several of his cousins, Chalan decided to discuss things with the law enforcement officers again. He asked one of his cousins to summon the FBI agent to the cousin's home. When the agent arrived, and before the agent had asked Chalan any questions, Chalan confessed to having committed the crimes. The confession occurred approximately twenty-two and one-half hours after Chalan was questioned on January 29. The agent explained to Chalan his Miranda rights. Chalan signed a written waiver-of-rights form and then gave a detailed confession, which was later reduced to writing and signed.

Chalan was twenty-two years old at the time of the investigation. He had been arrested at least twice before. He had also worked for approximately one year as a law enforcement official for the Pueblo. He had graduated from high school and attended college.

At the supression hearing preceding Chalan's trial, Chalan sought to exclude from evidence both his January 29th and January 30th statements. He argued that his January 29th statements should be excluded because he was subjected to "custodial interrogation" without first being admonished regarding his constitutional rights, in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Alternatively, Chalan argued that his January 29th statements were involuntary. Finally, Chalan argued that his January 30th confession was involuntary because he was still operating under the coercion placed on him during the January 29th interview.

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The trial court ruled all of Chalan's statements admissible. First, the court held that Chalan was not in custody for purposes of Miranda during the January 29th interview. The court specifically found that

"the defendant freely and voluntarily came to the Governor's office. No force or threat of force was used to compel the defendant to come to the office or to stay once he got there. Defendant was free to go at any time. After questioning the defendant was not arrested but was allowed to return home with his mother.

"... [D]efendant cannot point to any specific restraint on his freedom to leave except his wish not to show disrespect toward the Governor or fall into disfavor with the Governor.... Defendant's deference to the office of the Pueblo's Governor does not render the questioning of the defendant custodial."

Rec., vol. 1, at 80-81. The trial court also found that, on January 29th, "[n]o physical or mental pressure, threats or promises were used to coerce defendant into giving a statement." Id. at 81. Thus, the court concluded, "[d]efendant's statement was the product of his own free and independent will." Id. With regard to the January 30th statements, the trial court found that

"[t]he defendant initiated the contract [sic] with the law enforcement officers and gave a complete narrative of his involvement without prompting by the officers. He stated that he was not threatened in any way.... There is no evidence that the statement was coerced in any way or that the defendant was not completely competent when the statement was made."

Id. at 82. Accordingly, the trial court concluded that the January 30th confessions were "voluntarily and freely given." Id. Finally, the court ruled that "defendant knowingly, voluntarily and intelligently waived his right to counsel and his right to remain silent." Id.

In Miranda, the Supreme Court held that, in order to protect the privilege against self-incrimination, law enforcement officers must administer prophylactic warnings regarding the privilege to any suspect subjected to "custodial interrogation." Id. at 444, 86 S.Ct. at 612. The Court explained that such interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. If the warnings are not administered, the prosecution may not use statements made by the suspect, "whether exculpatory or inculpatory." Id.

Since Miranda, the Supreme Court has elaborated on its definition of when a suspect is in custody for purposes of administering Miranda warnings. According to the Court, the ultimate inquiry in deciding the custody question "is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per...

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