U.S. v. Dohm, 78-5030

Citation618 F.2d 1169
Decision Date13 June 1980
Docket NumberNo. 78-5030,78-5030
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John DOHM, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Jerome Ullman, Miami, Fla. (Court-appointed), and Donald L. Ferguson, Miami, Fla., for defendant-appellant.

Hugh F. Culverhouse, Jr., Linda C. Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before COLEMAN, Chief Judge, JOHN R. BROWN, AINSWORTH, GODBOLD, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON and THOMAS A. CLARK, Circuit Judges. *

HATCHETT, Circuit Judge.

We consider this case en banc to determine whether the government's use at trial of statements made by an accused at a pre-trial bail hearing constitutes a denial of the accused's fifth amendment rights against self-incrimination. We hold that it does not, but we reverse on another ground.

Appellants, John Dohm, Robert Rowen, Brian Martin, and Harold Kramer were charged with conspiracy to sell one kilogram of cocaine and with possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) & 846. Dohm was found guilty on both counts and sentenced to three years imprisonment and three years special probation. The trial court ordered that the two sentences be served concurrently.

The jury found Rowen guilty of the conspiracy charge, but could not reach a verdict on the possession charge. The trial court sentenced Rowen to 18 months in prison, to be followed by three years of special probation.

The trial court granted Harold Kramer's motion for directed verdicts of acquittal on both counts. The jury did not reach a verdict on either count against Brian Martin. After a second trial against Martin ended with the same result, the government's motion to dismiss the indictment was granted.

The panel opinion in this case is reported, United States v. Dohm, 597 F.2d 535 (5th Cir. 1979). In that opinion, the majority held that certain statements made by Dohm at his bail hearing before a United States

Magistrate were admissible against him at trial in the government's case-in-chief. The dissenting judge thought the statements made by Dohm at his bail bond hearing were inadmissible against him at trial. We took the case en banc to decide whether the statements were admissible.

FACTS

This episode began on August 2, 1977, when Drug Enforcement Administration (DEA) undercover agents Jerry Castillo and Michael O'Connor met with Dohm and Martin at a Miami restaurant and lounge. The meeting was for the purpose of discussing the purchase of cocaine by Agent Castillo.

Two days after the meeting, Martin called Castillo at a special phone set up at the DEA regional office in Miami. Martin indicated that everything was arranged for the drug buy. Later, arrangements were made for Castillo to drive to Martin's apartment. Castillo and O'Connor then drove to Martin's apartment, from which they followed Martin and Rowen to Dohm's house.

Castillo went into Dohm's house with Martin and Rowen, while O'Connor waited in the car across the street. In the kitchen, Castillo met Dohm and noticed a quantity of white powder on the top of the kitchen counter. The two men discussed the price of a kilogram of cocaine and Castillo agreed to pay $41,200 for a quantity slightly less than a kilogram. Castillo said that he would have to go to the car to get the money. There was some discussion about Castillo leaving the house at that moment because suspicious vehicles were seen outside. Castillo prevailed by insisting that the deal be concluded immediately, because he had to catch an airplane. Escorted by Martin, he was allowed to leave the house.

Once Castillo was outside the house, he gave the prearranged arrest signal to O'Connor and other agents, and Martin and Kramer were arrested. The agents then reentered the apartment, placed Dohm and Rowen under arrest, and seized one kilogram of cocaine.

ADMISSION OF TESTIMONY AS TO DOHM'S BAIL HEARING STATEMENT

Following the arrests a United States Magistrate held a bail hearing for Dohm and the other three defendants. Dohm contends that the trial court committed reversible error in allowing into evidence testimony by government agents as to statements he made at the initial bail hearing. We disagree with Dohm's contention that statements made by an accused while seeking bail are necessarily involuntary and coerced.

At the trial on the merits, Agent Castillo, over objection, was allowed to testify (irrelevancies omitted) as follows:

Q. And, before Judge Palermo asked these four defendants any questions, did he advise them of any of their constitutional rights?

A. (Agent Castillo) Yes, he did, sir. He advised each individual of his constitutional rights.

Q. And, what rights would those be, sir?

A. That's their right to remain silent, right to obtain counsel, a lawyer, if they can't afford a lawyer would be appointed to them, and

Q. Recalling your attention to Mr. Dohm, do you recall Judge Palermo advising Mr. Dohm of his rights?

A. Yes, I do, sir.

Q. Do you recall Judge Palermo (telling him) that anything he said at the hearing could be used against him in later proceedings?

A. Yes, he did.

Q. And after the Judge admonished him as to these rights, did Mr. Dohm make any statements in your presence?

A. Yes, he did make a statement.

Q. Would you tell the Court and jury what those statements were?

A. Mr. Dohm made a statement to the fact that it took him approximately two weeks to obtain the one kilogram (of cocaine) he handed me on that day in August. (Italics ours).

The testimony of Agent O'Connor is (after the preliminaries) as follows Q. And after he was advised of these constitutional rights, did Mr. Dohm make any statements?

A. Yes, he did.

A. Mr. Dohm stated to the Court that he did negotiate with Agent Castillo to sell him

MR. BARABAN: Objection, Your Honor. That's not the statement that was made.

THE COURT: Well, you will be able to cross examine him. He is entitled to state what the statement was, and you can cross examine him on it. That's all I can do. I don't know what the statement was. Go ahead.

THE WITNESS: That Mr. Dohm had stated to the Court that he did negotiate with Agent Castillo to sell him approximately one to two kilograms of cocaine at a later date.

At this time, Magistrate Palermo suggested to Mr. Dohm that he not say anything until he had a lawyer present.

At this initial appearance before the magistrate, which is required by Rule 5 of the Federal Rules of Criminal Procedure, Dohm and the other defendants were given a copy of the complaint against them. They were warned that they had a right to remain silent and that any statement they made could be used against them in court. The magistrate informed the defendants that they had a right to an attorney and that the court could appoint an attorney for anyone who could not afford one. Dohm stated that he thought he had the money to hire an attorney, but he would have to find one.

The magistrate also explained to the defendants that they were entitled to have a preliminary hearing at which the government would have to make a probable cause showing, and that if probable cause were found, the matter would be referred to the grand jury. Then the bail discussion began. After questioning Dohm about his background, employment, and community ties, Judge Palermo asked Agent O'Connor how Dohm had participated in the alleged crime.

The following colloquy took place:

THE COURT: Agent, what is his participation?

AGENT O'CONNOR: Mr. Dohm was the main source of the buy.

Mr. Rowen introduced Agent Castillo to him and during undercover negotiations Mr. Dohm stated to the agent that if this went through that he would be able to supply the agent approximately one to two kilos on a steady basis after this.

THE WITNESS: But, your Honor, sir, it wasn't true, but that's what I told them.

THE COURT: Who did he tell that to?

AGENT O'CONNOR: Agent Castillo.

THE COURT: Are you here?

AGENT O'CONNOR: Yes, sir.

AGENT CASTILLO: Yes, sir I am.

THE COURT: Did he tell you that?

AGENT CASTILLO: Yes, sir.

I told him if he would be willing to supply on a steady basis that this was, you know, the first time and I was a good customer and I would come to him, you know, several times afterward, and if there would be any problems in supplying me with additional amounts, and he said it would be no problem.

THE WITNESS: It's (inaudible).

THE COURT: Now, remember you don't have a lawyer with you now and this is just a bond hearing.

THE WITNESS: Yes.

THE COURT: You might hurt yourself to get involved too much, but if you know what you're doing, what you're saying, its (inaudible).

THE WITNESS: I would just say that it took me almost two weeks to get what I got, and I don't think I could get it again.

Dohm argues that he was compelled to forfeit his fifth amendment right to remain silent, in order to safeguard his eighth amendment right to reasonable bail. He relies on Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), where the Court held that incriminating testimony given on a motion to suppress evidence on fourth amendment grounds is inadmissible at trial on the merits.

An accused person in custody has the absolute right to remain silent and to have an attorney present during any questioning. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The accused must also be warned that any statements made can be used against him at trial. These rights are necessary to protect the accused's fifth amendment privilege against self-incrimination.

The fifth amendment privilege against self-incrimination was not designed affirmatively to encourage sealed-lips, but to protect the accused's "freedom to decide whether to assist the state in securing his...

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