U.S. v. Bentley

• Citation: 726 F.2d 1124
• Decision Date: 31 January 1984
• Docket Number: No. 81-3263,81-3263
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Anthony BENTLEY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1124

726 F.2d 1124

UNITED STATES of America, Plaintiff-Appellee, v. James Anthony BENTLEY, Defendant-Appellant.

No. 81-3263.

United States Court of Appeals,

Sixth Circuit.

Argued Nov. 29, 1982.

Decided Jan. 31, 1984.

David E. Melcher, argued, Cynthiana, Ky., for defendant-appellant.

Cheryl D. Grant, John DiPuccio, argued, Asst. U.S. Attys., Cincinnati, Ohio, for plaintiff-appellee.

Before MARTIN and WELLFORD, Circuit Judges, and FAIRCHILD, Senior Circuit Judge. ^*

FAIRCHILD, Senior Circuit Judge.

Defendant Bentley was convicted of two counts of bank robbery. He appealed. In response to trial counsel's motion, this court appointed a different attorney to represent Bentley on appeal and instructed that "appellant's brief [include] a discussion addressing whether the defendant's oral confession was properly admitted when it was apparently given in the absence of counsel after the defendant had already exercised his right to have counsel present; whether any objection to the admission of the oral confession was waived by the defense counsel's failure to object to [its] admission...; and whether the defendant received ineffective assistance of counsel particularly as his assistance related to the taking and admission of defendant's oral confession."

I.

The only evidence of the circumstances surrounding defendant's oral confession is the trial testimony of FBI Special Agent Williams. Agent Williams described a series of conversations he had with Bentley at the Hamilton County Jail in Cincinnati where Bentley was being held on a state bank robbery charge.

Prior to the first of these interviews, Williams testified he contacted Bentley's state court attorney--later his federal court trial attorney--Mr. Osborne, explained that he wanted to talk to Bentley about "his involvement in several bank robberies," and arranged a time when they could both meet with Bentley. On March 31, 1980, Williams and Osborne sat down with the defendant at the jail. Agent Williams advised Bentley of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Bentley signed a waiver of rights form. Williams then informed Bentley of the robberies he was suspected of committing. After conferring privately with his attorney, Bentley stated that he "did not have anything to say." The interview ended.

The following day Williams called Osborne and informed him that he intended to interview Bentley again on the second of April at ten o'clock. Osborne stated that "if it was possible he would try to be there." Williams arrived at the county jail on time, Osborne did not, and the interview proceeded. Williams again advised Bentley of his Miranda rights and obtained a signed waiver. The record does not disclose what, if anything, was said about Osborne's absence. Williams asked Bentley if "he was ready to tell me the story regarding the robberies that I suspected him of committing." After indicating hesitancy to testify against his partner, Bentley confessed that he participated in both robberies.

The next day, April 3, 1980, Williams returned to the jail--again after notifying Osborne of his intent to interview Bentley--advised the defendant of his Miranda rights, and obtained a signed waiver. Williams explained that he was "interested in getting a signed confession." Bentley agreed to sign a statement confessing involvement in the two robberies. Williams then began to write a statement for Bentley to sign. As Williams was finishing, Osborne arrived and said he wanted to talk to his client. A private conversation between Osborne and Bentley followed, after which the defendant stated "that he did not wish to sign that statement nor did he wish to testify against his partner."

The defense made no pretrial motion to suppress Agent Williams' testimony concerning Bentley's oral confession, nor did Osborne object to Williams' testimony at trial. The only question as to the admission of the agent's testimony was raised by the trial court sua sponte.

Declaring a recess in the middle of Williams' testimony, Judge Spiegel called counsel into chambers and expressed doubt as to the authority of an agent "to go back and continue seeking to question the defendant after the defendant has indicated he doesn't want to be questioned." In response, government counsel argued that Agent Williams acted properly, stressing that before each session he notified defendant's attorney of his intent to interview Bentley and obtained a signed waiver of rights from Bentley before proceeding with questioning. Counsel also emphasized the distinction between the present case where Bentley had benefit of counsel at an earlier interrogation and the case where a defendant requests an attorney at the first interrogation but is not given one. Judge Spiegel asked Bentley's counsel if he had "anything to offer." Osborne then conferred with Bentley and responded "that what's been told to the Court is accurate."

II.

At issue are three interviews, the third being divided into two phases. At the first interview counsel was present at the instance of the Agent. Bentley consulted with counsel and chose to remain silent. At the second interview counsel was absent, although he had been notified of the proposed interview. Bentley signed a waiver of his Miranda rights and then made incriminating statements. At the first phase of the third interview Bentley (with counsel absent) again signed a waiver and agreed to sign a confession. After counsel arrived and conferred, Bentley refused to sign.

There is no indication that Bentley initiated the second interview and Bentley argues that the so-called "Edwards rule" therefore establishes that the Agent's testimony as to his oral confession at the second interview was inadmissible. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

We do not agree that the "Edwards rule" applies to the facts before us.

In Edwards, police stopped questioning the accused after he asked for an attorney but returned the following day and told Edwards "he had" to talk. Police then read Edwards his rights and he agreed to make a statement. The Supreme Court found that Edwards' confession was taken in violation of his right to counsel under the Fifth and Fourteenth Amendments. The Court held that:

when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.

Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884-1885 (emphasis added). This latter holding--italicized--has come to be known as the "Edwards rule." Oregon v. Bradshaw, --- U.S. ----, ----, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983). See also Wyrick v. Fields, --- U.S. ----, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982). Cf. Maglio v. Jago, 580 F.2d 202, 205 (6th Cir.1978).

Given the Edwards facts--an initial request for counsel followed, before provision of counsel, by an interview somewhat insistently initiated by the police--the Supreme Court decided that the prosecution would not be permitted to support admissibility by demonstrating knowing and intelligent waiver of the right to counsel and right to remain silent unless it first proved that the accused had himself initiated further communication.

The Court has characterized the Edwards rule as "a prophylactic rule, designed to protect an accused in police custody from being badgered by police officers in the manner in which the defendant in Edwards was." Bradshaw, --- U.S. at ----, 103 S.Ct. at 2834.

The manner in which Agent Williams conducted himself was markedly different. He arranged for counsel's presence at the first interview. ¹ He notified counsel of his intention to hold the second and third interviews, receiving a vague response concerning counsel's intentions to be present. Although the record does not show what the agent and Bentley said about counsel's absence, there is nothing to indicate that the agent made any misleading statements.

We view the impact of Edwards (as explained in Bradshaw ) on this case as no more than emphasizing the need that Bentley be shown to have made a knowing and intelligent waiver before his responses become admissible. ²

The present record does not permit a determination of the knowing and intelligent nature of Bentley's waiver. Bentley's signed waivers were in evidence and Agent Williams testified to having advised Bentley of his rights. Williams did not testify what either he or Bentley said about Mr. Osborne's absence, or whether Bentley indicated any preference to have him present. No testimony was offered as to Bentley's education or experience. The record does, however, show that on the two occasions when Bentley had the benefit of consultation with counsel, he decided to remain silent. The inference readily drawn from the counseled choices to remain silent makes it disquieting to rely solely on the signed waivers.

The government bears a "heavy burden of establishing that Bentley voluntarily, knowingly and intelligently waived his right to silence and to counsel. Miranda, 384 U.S. at 475, 86 S.Ct. at 1628 (citing Escobedo v. Illinois, 378 U.S. 478, 490 & n. 14, 84 S.Ct. 1758, 1765 & n. 14, 12 L.Ed.2d 977 (1964)). See also Tague v. Louisiana, 444 U.S. 469, 470-71, 100 S.Ct. 652, 653, 62 L.Ed.2d 622 (1980); North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979). Where the accused has "expressed his own view that he is not competent to deal with the authorities without legal...