U.S. v. Fouche, 86-5157

• Decision Date: 15 December 1987
• Docket Number: No. 86-5157,86-5157
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pierre FOUCHE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1284

833 F.2d 1284

UNITED STATES of America, Plaintiff-Appellee, v. Pierre FOUCHE, Defendant-Appellant.

No. 86-5157.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 2, 1987.

Decided April 9, 1987.

As Amended on Denial of Rehearing and Rehearing En Banc Dec. 15, 1987.

Enrique Romero, Los Angeles, Cal., for plaintiff-appellee.

Carlton F. Gunn, Los Angeles, Cal., for defendant-appellant.

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

Before FERGUSON, NELSON and BEEZER, Circuit Judges.

NELSON, Circuit Judge:

Pierre Fouche appeals his conviction on two counts of unarmed bank robbery, under 18 U.S.C. Sec. 2113(a) (1982). He contends that the district court erred in denying his motion to suppress a confession that was allegedly obtained in violation of his Miranda rights. We hold that the government agent's questions were fairly designed to clarify Fouche's equivocal request for counsel and that Fouche made a knowing and voluntary waiver of his Miranda rights. Since Fouche has made no claim that the confession was otherwise involuntary, we conclude that the confession was properly admitted into evidence at trial. We affirm.

I FACTUAL AND PROCEDURAL BACKGROUND

This appeal comes before us for the second time. Fouche originally filed a motion to suppress his confession in June, 1984, before trial. He contended that his interrogators failed to clarify his equivocal request for counsel before obtaining his confession, thereby violating his Miranda rights. The district court denied the motion and in October 1984 Fouche was convicted on two counts of unarmed bank robbery pursuant to 18 U.S.C. Sec. 2113(a). Fouche appealed. ¹ We remanded to the district court for further findings of fact, to determine whether or not the interrogating agents had sufficiently clarified Fouche's request before continuing the interrogation. United States v. Fouche, 776 F.2d 1398, 1405 (9th Cir.1985). The district court, on remand, held an evidentiary hearing in June 1986 and upheld its original decision to deny the motion to suppress the confession. Fouche filed a timely appeal of that decision.

The preliminary facts of this case, as determined at trial and presented to us on the first appeal, are set forth in detail in Fouche, 776 F.2d at 1401-02. The facts relevant to this case are as follows. On May 3, 1984, Pierre Fouche was arrested on suspicion of bank robbery. He was taken to the Montebello Police Station where he was booked and questioned by FBI agents. Before beginning the interrogation, the agents read Fouche his Miranda rights from an "Interrogation: Advice After responding to several questions, Fouche stated that he "might want to talk to a lawyer," and that he did want to make a telephone call. The FBI agents stopped the interrogation immediately and allowed Fouche to leave the room to make a telephone call. Before leaving the room, Fouche told the agents to wait for him because he might want to talk to them after making his call. Fouche did not call his lawyer, but chose to call his wife instead.

                of Rights" form. 2   That form explains the Miranda rights in simple, clear language and exceeds the minimum requirements of Miranda.    It informs the suspect that he has the right to consult counsel before interrogation begins and during interrogation.  It further adds that the suspect has the right to stop an interrogation and consult counsel at any time, even after an initial waiver of those rights.  The FBI agents asked Fouche if he understood his rights and wished to waive them, and obtained a written waiver from him
                

When Fouche returned to the interrogation room, FBI Agent Alba immediately reread the rights forms and again asked Fouche if he understood his rights and if he wished to waive them. Fouche repeated that he understood his rights and that he wanted to waive them. Fouche told Agent Alba that he had called his wife rather than a lawyer. Agent Alba asked Fouche about his conversation with his wife, and Fouche said that his wife had told him to do what he wanted to do. Fouche asked Agent Alba what Alba thought Fouche should do. Alba replied that he was not a lawyer and therefore would not give advice. Agent Alba then asked Fouche if he wanted to make a statement regarding the bank robberies. Fouche indicated that he did. The interrogation continued and Fouche ultimately made a full confession which was admitted into evidence against him. We note jurisdiction under 28 U.S.C. Sec. 1291.

II DISCUSSION

A. Standard of Review

The question whether the statements of government agents following an equivocal request for counsel were fairly designed to clarify that request is an essentially factual question that we review under a clearly erroneous standard. See United States v. McConney, 728 F.2d 1195, 1200-02 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984); cf. United States v. Poole, 806 F.2d 853 (9th Cir.1986) (holding that the determination whether a government agent's questions amounted to custodial interrogation is an essentially factual inquiry reviewable for clear error) (amending 794 F.2d 462 (9th Cir.1986)).

Fouche claims that the government agents' failure to clarify his equivocal request for counsel prevented him from making a voluntary waiver of his Miranda rights. We review the district court's determination that the defendant knowingly and voluntarily waived his Miranda rights under the clearly erroneous standard. United States v. Doe, 819 F.2d 206, 209 (9th Cir.1987); United States v. Bernard, 795 F.2d 749, 751, 753 (9th Cir.1986). It is not clear what effect, if any, Colorado v. Connelly, --- U.S. ----, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), will have on this standard of review. See United States v. Wolf, 813 F.2d 970, 975-76 n. 16 (9th Cir.1987) (questioning, without resolving, whether Colorado v. Connelly suggests that de novo review of the voluntariness of waivers

of the right to silence may be appropriate). We need not resolve this question, however, because under either a de novo or clearly erroneous standard, we would reach the same result.

B. The Equivocal Request for Counsel

Before custodial interrogation may begin, every suspect must be informed of his right to remain silent and of his right to counsel. Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). He may not be interrogated unless and until he waives those rights. Id. If the suspect at any time invokes his right to counsel, all questioning must cease and must not resume until the suspect consults with counsel or initiates further contacts with his interrogators. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981). In some circumstances, however, the request for counsel may be equivocal or ambiguous, as when Fouche said that he might want to talk to a lawyer or might want to talk to the FBI agents. Miranda recognized that

[i]f [a suspect] is indecisive in his request for counsel, there may be some question on whether he did or did not waive counsel. Situations of this kind must necessarily be left to the judgment of the interviewing Agent.

Miranda, 384 U.S. at 485, 86 S.Ct. at 1633 (quoting letter from Solicitor General). We have decided that in such cases "the police must cease all questioning, except that they may attempt to clarify the suspect's desire for counsel." ³ Fouche, 776 F.2d at 1404. If the clarification reveals that the suspect does not want counsel, the interrogation may continue. Id. at 1405. We have already held that Fouche's statement that he "might want to talk to a lawyer" constituted an equivocal request for counsel; therefore, we consider only whether Agent Alba sufficiently clarified Fouche's equivocal request before proceeding with the interrogation.

The seminal case addressing waiver of the right to counsel after an equivocal request is Nash v. Estelle, 597 F.2d 513 (5th Cir.) (en banc), cert. denied, 444 U.S. 981, 100 S.Ct. 485, 62 L.Ed.2d 409 (1979), whose reasoning we recently adopted. Fouche, 776 F.2d at 1404-05. The court in Nash ruled that government agents may question a suspect after an equivocal request for counsel. The court warned, however, that such questioning must be limited to attempts to clarify the request and must not coerce or intimidate the suspect into waiving his rights. Nash, 597 F.2d at 517-18. The "critical factor" in determining the validity of the government's behavior is "whether a review of the whole event discloses that the interviewing agent has impinged on the exercise of the suspect's continuing option to cut off the interview." Id. at 518.

We find that Agent Alba's statements to Fouche after Fouche's equivocal request and before his confession were fairly designed to clarify Fouche's ambiguous request, and did not constitute interrogation in violation of Miranda. Agent Alba scrupulously cut off questioning at the moment of Fouche's equivocal request for counsel and clarified the defendant's wishes before proceeding with the interrogation. Fouche retained the option to cut off questioning and to assert his right to counsel, but he chose not to exercise it. While a "suspect has an absolute right to terminate stationhouse interrogation, he also has the prerogative to then and there answer questions, if that be his choice." Nash, 597 F.2d at 517. Fouche voluntarily declined to invoke his right to counsel, choosing instead to answer Agent Alba's questions.

A small number of other federal cases have addressed the issue of the permissible scope of official questioning after an equivocal request for counsel. We agree with their holdings, but distinguish them from the present case because their facts differ from the facts before us. In Thompson v Another Fifth Circuit case, United States v. Cherry, 733 F.2d 1124 (5th Cir.1984), cert. denied, --- U.S. ----, 107 S.Ct. 932, 93 L.Ed.2d 983 (1987), is also...