U.S. v. Covington

• Decision Date: 25 February 1986
• Docket Number: No. 84-1150,84-1150
• Citation: 783 F.2d 1052
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Terry COVINGTON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1052

783 F.2d 1052

UNITED STATES of America, Plaintiff-Appellant, v. Terry COVINGTON, Defendant-Appellee.

No. 84-1150.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 11, 1984.

Decided April 16, 1985.

As Amended on Denial of Rehearing

and Rehearing En Banc

Feb. 25, 1986.

Mark J. Bennett, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellant.

Peter C. Wolff, Jr., Honolulu, Hawaii, for defendant-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before WALLACE, HUG, and SCHROEDER, Circuit Judges.

HUG, Circuit Judge:

The Government appeals from an order suppressing the confessions made by appellee Terry Covington ("Covington") to an

employee of a private corporation providing security and patrol services to the United States Army on Kwajalein Island, one of the islands of the Republic of the Marshall Islands. The court has appellate jurisdiction pursuant to 18 U.S.C. Sec. 3731 (1982). Because the district court applied an incorrect legal standard in suppressing Covington's statements, we reverse and remand.

FACTS

On December 29, 1979, Covington was arrested on Kwajalein Island of the Republic of the Marshall Islands by Washington Patrol Service ("WPS") investigator Jack Guse ("Guse") for incest in violation of the Trust Territory Code. WPS provides investigative and patrol services at the Kwajalein Missile Range on Kwajalein Island pursuant to a contract with the United States Army. At the time of the arrest, Guse was also a sworn Micronesian police officer authorized by the Republic of the Marshall Islands to make arrests for violations of Marshall law.

In accordance with Marshall law, Guse read Covington a "Miranda "-type warning at the time of his arrest. He did not request to see an attorney at that time. Covington was transferred to the custody of two other WPS officers and was transported to a detention facility on Kwajalein Island. While in transit, Covington was once again advised of his rights to remain silent and to consult with an attorney. At that time, Covington did request to see an attorney.

After obtaining a statement from Covington's daughter, and approximately one hour after the arrest, Guse and another WPS investigator interrogated Covington in his cell at the detention facility. Neither Guse nor his fellow investigator had actual knowledge that Covington had previously requested an attorney. When questioned, Covington agreed to cooperate. Covington was re-advised of his "Miranda " rights and confessed to the crime. The government of the Republic of the Marshall Islands determined not to prosecute, referring the matter to the United States officials. Covington was flown to Honolulu, Hawaii and a criminal indictment issued, charging Covington with carnal knowledge of his 13-year-old daughter within the special maritime and territorial jurisdiction of the United States, pursuant to 18 U.S.C. Sec. 2032 (1982).

Before trial, Covington moved to suppress his confession and to dismiss the indictment for lack of jurisdiction. The magistrate issued a report recommending that the motion to dismiss be denied. The magistrate recommended that the confession be suppressed on the ground that it was obtained in violation of Marshall law. The district court approved the magistrate's findings on the motion to suppress. This was challenged by the Government. On reconsideration, the district court affirmed its original order suppressing the confession, but did not rely on the reasons stated by the magistrate. Instead, the district court ruled that

[t]he court is unwilling to decide how far Edwards v. Arizona, 451 U.S. 477 [101 S.Ct. 1880, 68 L.Ed.2d 378] (1981) reaches under Marshall law. Edwards, 451 U.S. at 487 , has decided for us that such evidence as was obtained in this case is inadmissible in our courts. As a matter of due process and control over our own system of Justice, that rule should apply regardless of where the evidence was obtained, if it is to be introduced here.

We disagree with the legal standard applied by the district court and reverse and remand for further proceedings consistent with our holding.

DISCUSSION

As a threshold question, we must determine the status of the Republic of the Marshall Islands. The Republic of the Marshall Islands is part of the Trust Territory of the Pacific Islands, which the United States has administered as a United Nations Trusteeship since 1947. See Commonwealth of Northern Mariana Islands v. Atalig, 723 F.2d 682, 684 (9th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 3518, 82 L.Ed.2d 826 (1984); Matter of Bowoon Sangsa Co., 720 F.2d 595, 599 (9th Cir.1983). The United States exercises powers of administration, legislation, and jurisdiction over the Republic of the Marshall Islands pursuant to an agreement with the United Nations. See Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, art. 3, 61 Stat. 3301, 3302 T.I.A.S. No. 1665, 8 U.N.T.S. 189, 192. However, the United States does not possess sovereignty over the Trust Territory. Atalig, 723 F.2d at 684; McComish v. Commissioner, 580 F.2d 1323, 1330 (9th Cir.1978); see also Gale v. Andrus, 643 F.2d 826, 832 (D.C.Cir.1980).

The system of government in the Trust Territory is "in a transitional phase as the political subdivisions of the area move toward self-government and the termination of the Trusteeship Agreement." Matter of Bowoon Sangsa, 720 F.2d at 600. Two alternatives have been considered by the inhabitants of the Trust Territory: "free association" and commonwealth status. Id. The Republic of the Marshall Islands has opted for free association status with the United States. Id. The result of free association status is that United States sovereignty does not apply to the Republic of the Marshall Islands, and the district is afforded full internal self-government. Consequently, we treat this confession as if it had been taken in what was undeniably a foreign country.

Covington claims that his statements were taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Miranda declares that the fifth and fourteenth amendments' prohibition against compelled self-incrimination requires that custodial interrogation be preceded by advice to the accused that he has the right to remain silent and also the right to the presence of an attorney. Miranda, 384 U.S. at 467-68, 471, 86 S.Ct. at 1624-25, 1626. Miranda further states:

If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.

Id. at 474, 86 S.Ct. at 1628 (emphasis added). Edwards reaffirms that once an accused asserts his right to counsel, he cannot be subject to further interrogation by the authorities until counsel has been made available to him, unless the accused initiates conversation with the police. Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884-85.

The magistrate and the district court correctly concluded that the initiation of interrogation by the investigators after Covington had requested an attorney violated the procedure prescribed by Miranda and Edwards. The fact that the particular investigators did not have knowledge of the request does not avoid the prohibition against further interrogation when the request was made to others within the same investigatory authority. See United States v. Scalf, 708 F.2d 1540, 1544-45 (10th Cir.1983); White v. Finkbeiner, 687 F.2d 885, 887 n. 9 (7th Cir.1982), vacated on other grounds, 465 U.S. 1075, 104 S.Ct. 1433, 79 L.Ed.2d 756 (1984). Those conducting the investigation failed in their obligation to determine, before they resumed the interrogation, if a prior request for an attorney had been made by Covington.

We must now determine whether that failure requires the invocation of the exclusionary rule. The dictates of Miranda and Edwards are based upon the fifth and fourteenth amendments, which prohibit the agents of the United States and agents of the state governments from compelling a person to be a witness against himself in any criminal case. "Miranda was, and remains, a prophylactic device designed to protect the exercise of Fifth Amendment rights by criminal defendants." United States v. Booth, 669 F.2d 1231, 1237 (9th Cir.1981). When there has been no compulsion by a state or federal agent, either directly or by significant participation by such an agent, then the constitutional mandate has not been violated. Therefore, when a law enforcement officer of a foreign country does not follow the requisites of Miranda and Edwards, the fifth amendment right against self-incrimination has not been violated and there is no requirement for invocation of the exclusionary rule. The evidence may of course be properly excluded on due process grounds, if the statements were involuntary or the evidence was otherwise untrustworthy.

The magistrate held that the law of the Marshall Islands required compliance with Miranda and Edwards and thus he was required to invoke the exclusionary rule. However, we have held that the exclusionary rule is not applicable to interrogations performed by foreign police officers acting in their own country. United States v. Chavarria, 443 F.2d 904 (9th Cir.1971). In Chavarria, we gave the following explanation for not excluding statements obtained by foreign officials in violation of the accused's Miranda rights.

Miranda was intended as a deterrent to unlawful police interrogations. When the interrogation is by the authorities of a foreign jurisdiction, the exclusionary rule has little or no effect upon the...