938 F.2d 934 (9th Cir. 1991), 89-50248, United States v. Jenkins

Docket Nº:89-50248.
Citation:938 F.2d 934
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey JENKINS, Defendant-Appellant.
Case Date:July 05, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 934

938 F.2d 934 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jeffrey JENKINS, Defendant-Appellant.

No. 89-50248.

United States Court of Appeals, Ninth Circuit

July 5, 1991

Argued and Submitted Sept. 10, 1990.

Withdrawn from Submission Nov. 5, 1990.

Withdrawn from Submission April 26, 1991. Resubmitted March 20, 1991.

Withdrawn from Submission April 26, 1991.

Resubmitted May 20, 1991.

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Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

Mark C. Holscher, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before FLETCHER, BOOCHEVER and WIGGINS, Circuit Judges.

BOOCHEVER, Circuit Judge:

Jeffrey Jenkins was found guilty of possessing an unregistered sawed-off shotgun in violation of 26 U.S.C. Sec. 5861(d). He appeals, arguing that the district court erred in finding his post-arrest confessions voluntary, admitting certain evidence, and failing to give a particular jury instruction. Because we conclude that the district court erroneously admitted Jenkins's coerced confessions, we reverse without reaching the other issues raised on appeal.

I. FACTUAL BACKGROUND

A Seattle narcotics task force was investigating Los Angeles gang members who sold narcotics in Seattle. Jenkins's brother, Derrick Hargress, was indicted in Seattle on narcotics and firearms charges. Seattle task force members obtained a warrant to search Jenkins and Hargress's residence in Inglewood for trafficking ledgers, firearms, narcotics, and cash.

On May 11, 1988, at 8:30 p.m., federal agents and local police officers went to Jenkins's home to execute the warrant. The government contends that, upon approaching Jenkins who was outside the front of the house, the police identified themselves, specifically yelling, "Stop, police!" and "Freeze!" Nonetheless, Jenkins ran through a back door into the house from which he fired at the police several rounds of semi-automatic rifle fire.

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Jenkins, on the other hand, testified that he never heard the police identification. Instead, Jenkins, who had been shot three times in the stomach only months earlier, believed the darkly clad men were Mexican gang members out to kill him. This testimony was corroborated at trial by two witnesses in the house at the time. Jenkins's mother testified that her son came running in the house yelling, "Momma, Momma, they coming to get us. They come to kill us. Call 911." She further testified that he said it looked like Mexicans. John Brewer, a family friend present at the time of the shootout, similarly testified that Jenkins said, "[n]ow they're sending three Mexicans after me."

There was also testimony at trial that, when Mrs. Jenkins called 911 to report the shooting, she was told "[w]e know Ma'am, we know. Just hang up. Please just hang up the phone." Ms. Jenkins testified that the police dispatcher did not say that the police were there, or that they were being shot at. Consequently, she told Jenkins the police "should be on their way." Thereafter, the police called the house. Ms. Jenkins was told by the officer to "[t]ell [Jenkins] to come out the front door with his hands up." She testified that, when told, her son immediately placed his rifle on the bed and complied, while she remained on the line as ordered. Ms. Jenkins, her granddaughter, and Brewer also exited the house as instructed. Jenkins, Ms. Jenkins, and Brewer were arrested and taken to the police station. Jenkins was beaten and threatened with death by the police during and after his arrest. See infra, Section II.

In the meantime, the officers searched the house pursuant to the warrant. On the bed in Jenkins's bedroom they found the AR-15 rifle which Jenkins had fired at police. A sawed-off shotgun and a .38 caliber revolver were found under the mattress. Police also found three other firearms. All six were loaded.

At the police station, Jenkins complained of abdominal pain related to his prior gunshot wounds, allegedly exacerbated by the police beating. He was taken to the hospital and subsequently returned to the police station at about 2:00 a.m. where an Inglewood police officer, Detective Lawrence Marino, questioned him. After receiving his Miranda warnings and waiving his rights, Jenkins admitted, among other things, owning the sawed-off shotgun.

Five hours later, allegedly having had no sleep, Jenkins was interviewed again, this time by a detective of the Seattle Police Department. Jenkins again waived his rights and again admitted owning the sawed-off shotgun. At the end of the interview, the detective asked Jenkins if he would like to make a formal statement, and Jenkins replied that he would rather not.

An indictment charged Jenkins with four counts of attempted murder of a federal agent, four counts of assault on a federal agent, use of a firearm during a crime of violence, and possession of an unregistered sawed-off shotgun. Before trial, Jenkins filed both a motion to suppress his statements and a motion to suppress evidence that he possessed the firearms, contending that his admissions were coerced. The district court denied the motions.

The jury acquitted Jenkins of all but the sawed-off shotgun possession charge, presumably accepting the reasonableness of his belief, under the circumstances, that he was firing in self-defense at Mexican gang members. This appeal followed.

II. PROCEDURAL HISTORY

In appellant's brief and at oral argument, Jenkins's counsel argued that the district court erred in concluding that Jenkins's post-arrest statements were voluntary because there was unrefuted testimony that Jenkins had been beaten and threatened by the police. Because the district court found the statements voluntary without making specific findings with respect to Jenkins's claims, we withdrew submission of the case and remanded to the district court for specific findings.

The district court found that upon exiting the house as ordered, Jenkins was thrown to the ground and repeatedly kicked in the groin, stomach, and back by

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the arresting officers. It further found that an arresting officer who knew Jenkins had been recently shot said "something similar to, 'They should have killed you, but that's okay, we'll do it.' " The court also found that, while on their way to the police station after Jenkins's arrest, the officers stopped in the Los Angeles Forum parking lot. There they showed Jenkins a gun which they talked about planting on him, then shooting him, claiming he tried to escape. Indeed, the court found that one of the officers indicated that they could not follow through on their plan because there were some cars in the parking lot. Despite these findings, the court found the confessions voluntary.

Only days after we received the district court's supplemental findings, the Supreme Court announced its decision in Arizona v. Fulminante, --- U.S. ---, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), in which, among other things, it subjected a coerced confession to harmless-error analysis. Once again we withdrew submission, this time to afford the parties an opportunity to address the impact of Fulminante on this case. Pursuant to our order for supplemental briefing, the government has candidly conceded that, should we find the confessions coerced, it would be unable to meet its burden of proving harmless error beyond a reasonable doubt.

III. DISCUSSION

On pretrial motions to suppress, and now on appeal, Jenkins...

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