U.S. v. Ballard

• Decision Date: 22 December 1978
• Docket Number: No. 78-5127,78-5127
• Citation: 586 F.2d 1060
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donna BALLARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1060

586 F.2d 1060

UNITED STATES of America, Plaintiff-Appellee, v. Donna BALLARD, Defendant-Appellant.

No. 78-5127.

United States Court of Appeals Fifth Circuit.

Dec. 22, 1978.

J. Roger Thompson, Frank J. Petrella, Atlanta, Ga., for defendant-appellant.

Jack V. Eskenazi, U. S. Atty., Barbara D. Schwartz, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, GODBOLD and FAY, Circuit Judges.

FAY, Circuit Judge:

Appellant Donna Ballard was tried for the first time with Robert Barnes on charges of conspiracy to import and to possess cocaine with intent to distribute, ¹ importation of cocaine, ² and possession of cocaine with intent to distribute. ³ Appellant was convicted of the conspiracy count and acquitted of the others. She was given a new trial on the conspiracy charge and again convicted. She raises four points on appeal: 1) The government should not have been allowed to introduce a hearsay statement made by appellant's sister, Lisa, at the time of her arrest; 2) the court should have ruled that appellant's confession was involuntary and that testimony pertaining to it was inadmissible; 3) the court erred by overruling appellant's motion to dismiss the indictment or, in the alternative, by failing to limit the introduction of testimony which should have been barred by collateral estoppel; and 4) the government failed to prove appellant's guilt beyond a reasonable doubt. We affirm the conviction. The basic facts of the case are outlined in Barnes v. United States, 586 F.2d 1052 (5th Cir. 1978). We need not repeat them here. We consider the arguments seriatim.

I. COCONSPIRATOR RULE

We refuse to accept appellant's first argument for reversal for the same reason that we rejected it in Barnes. Although admission of Lisa's statement was error, it was harmless in view of appellant's confession and the other overwhelming evidence of her guilt. See United States v. Jennings,527 F.2d 862, 867 (5th Cir. 1976).

II. VOLUNTARINESS OF CONFESSION

At trial, Donna Ballard denied making a confession. In the alternative, she argued that she involuntarily made the statement which she denied making. She asserts the latter as a ground for reversal, contending that the trial judge erred in finding at a Jackson v. Denno ⁴ hearing that her confession was voluntarily made. The question of the voluntariness of a confession turns on the effect of the totality of the circumstances on the defendant's will. Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897). The court must make this determination by at least a preponderance of the evidence. Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967).

Appellant points to a number of factors which should have led the trial judge to the conclusion that her confession was involuntary. A number of appellant's contentions were factually resolved against her at trial. Donna testified that agent Putsche, the detaining officer, told her that he would see to it that she got fifteen years for each of three offenses and that, if she cooperated, her chances for probation were excellent. Putsche testified that he merely informed Donna of the maximum penalty and added that " realistically . . . you usually receive five to seven years." He further stated that he didn't mention probation. Donna testified that she was intimidated and that Putsche raised his voice, slapped the table, and called her a liar. Agents Putsche and Attaway stated that they did not frighten her, that no one yelled at her, and that much of the time, during which appellant was held, was spent "chatting." It is clear from these contradictory versions of the facts surrounding Donna's confession that the trial judge was required to make a choice based on credibility. The judge believed the agent's version of the situation, and there is ample evidence in the record to support his decision. The trial court's decision that the confession was voluntary was stated clearly in the record. See Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593; United States v. Gonzalez, 548 F.2d 1185, 1189 (5th Cir. 1977). Accordingly, as an appellate court, we decline to upset these factual determinations. See, e. g., United States v. Taylor, 508 F.2d 761 (5th Cir. 1975).

A number of appellant's grounds for reversal of the court's determination of voluntariness are not factually disputed. The question, then, is whether these circumstances mandate a finding as a matter of law, that the confession was not freely given. Agent Putsche told appellant that her sister had made a full confession. He further suggested that the narcotics traffickers do not take the risks; they use other people to carry the drugs. She was told that in return for her cooperation the government would make a recommendation and inform the court of her cooperation. She was informed of the maximum possible penalty and of the penalty realistically to be expected. Appellant was advised of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). She signed neither a waiver nor a written statement. At no time did she request an attorney.

A review of the circumstances surrounding the confession provides ample support for the trial court's ruling. Encouraging a suspect to tell the truth and suggesting that his cohorts might leave him "holding the bag" does not, as a matter of law, overcome a confessor's will, even though he or she may be sixteen years of age. United States v. Barfield, 507 F.2d 53 (5th Cir.), Cert. denied, 421 U.S. 950, 95 S.Ct. 1684, 44 L.Ed.2d 105 (1975). Neither is a statement that the accused's cooperation will be made known to the court a sufficient inducement so as to render a subsequent incriminating statement involuntary. Id.; United States v. Frazier, 434 F.2d 994 (5th Cir. 1970). Finally, that appellant's statement was oral and not written does not, in itself, establish its inadmissibility. United States v. Pollard, 509 F.2d 601 (5th Cir. 1975). A truthful and noncoercive statement of the possible penalties which an accused faces may be given to the accused without overbearing one's free will. Such an account may increase the chance that one detained will make a statement. However, as long as the statement results from an informed and intelligent appraisal of the risks involved rather than a coercive atmosphere, the statement may be considered to have been voluntarily made. Thus, in Rivers v. United States, 400 F.2d 935 (5th Cir. 1968), where a government agent informed a suspect of the statutory penalties for lying, without using the penalties to coerce the suspect into making a statement, we held that his will had not been overcome. Similarly, in the instant case, telling the appellant in a noncoercive manner of the realistically expected penalties and encouraging her to tell the truth is no more than affording her the chance to make an informed decision with respect to her cooperation with the government. Cf. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (guilty plea may be accepted even though defendant may have made it in order to avoid a harsher penalty after trial).

Determining whether a confession is voluntary requires an assessment of human motivation and behavior. One factor, by itself, is seldom determinative. Consequently, the impact of any one of the aforementioned acts will vary according to the circumstances under which they were performed and the state of mind of the accused. As we pointed out in Rivers and Barfield where we found the confessions to be voluntary, if the government's statements of which the appellant complains were made to appellant in a coercive manner, the court would have considered the confessions to have been made involuntarily. In this case, the judge found that appellant's statement was not made in a coercive atmosphere. The court resolved the credibility choice in favor of the government. ⁵ The facts, as found by the judge and as supported by the Jackson hearing, were that Donna Ballard knew she was caught, she was informed of her options, and she made a choice. Given these findings as a backdrop to the statements made to Miss Ballard, we refuse to hold as a matter of law that they had the effect of coercing her confession.

III. DOUBLE JEOPARDY

As another ground for reversal, appellant proposes alternative double jeopardy arguments. At her first trial, she was charged with 1) conspiracy to import cocaine and to possess cocaine with intent to distribute; 2) importation of cocaine, and 3) possession of cocaine with intent to distribute. She was acquitted of the latter two offenses and convicted of the conspiracy charge. The trial judge thereafter ordered a new trial on the conspiracy count. At the second trial, appellant was again convicted of the conspiracy. She now maintains that the judge at the second trial should have granted her motion to dismiss the case on the basis of double jeopardy. In the alternative, she argues, the judge should have ruled that the prosecution was collaterally estopped from introducing proof of her importation and possession of cocaine since she had already been acquitted of those charges. We agree with neither contention.

The judge was not required by the double jeopardy clause to dismiss entirely the second trial of the conspiracy count. Conspiracy to commit a crime and the crime itself are clearly two separate offenses. E. g., Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); King v. United States, 565 F.2d 356 (5th Cir. 1978); Curtis v. United States, 546 F.2d 1188, Rehearing en banc denied, 550 F.2d 41 (5th Cir.), Cert. denied,431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977). Acquittal on the substantive counts does not foreclose prosecution for the conspiracy.

App...