U.S. v. Evans

• Decision Date: 26 October 1990
• Docket Number: 89-5488,Nos. 89-5487,s. 89-5487
• Citation: 917 F.2d 800
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Antonio EVANS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William McINTYRE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 800

917 F.2d 800

UNITED STATES of America, Plaintiff-Appellee, v. John Antonio EVANS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. William McINTYRE, Defendant-Appellant.

Nos. 89-5487, 89-5488.

United States Court of Appeals, Fourth Circuit.

Argued July 19, 1990.

Decided Oct. 26, 1990.

Nina Jean Ginsberg (argued), Dimuro, Ginsberg & Lieberman, P.C., Alexandria, Va., for appellant Evans.

David Harrison Hopkins, Fairfax, Va., for appellant McIntyre.

Bernard James Apperson, III, Asst. U.S. Atty., Henry E. Hudson, U.S. Atty. (on brief), Alexandria, Va., for appellee.

Before CHAPMAN and WILKINSON, Circuit Judges, and HOUCK, United States District Judge for the District of South Carolina, sitting by designation.

CHAPMAN, Circuit Judge:

On July 31, 1989, following a jury trial, John Antonio Evans and William McIntyre were convicted of distributing, within 100 feet of a video arcade facility, 50 grams or more of crack cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and aiding and abetting such distribution in violation of 18 U.S.C. Sec. 2. Appellants claim error by the district court (1) in denying Evans' motion to suppress a statement given to police officers shortly after his arrest, (2) in failing to inquire of prospective jurors on voir dire as to possible prejudice in favor of a police officer's testimony, (3) in allowing the government to improperly vouch for the credibility and truthfulness of its primary witness, and (4) in failing to give a limiting instruction after the admission of evidence of other crimes by the appellants. We find no error as to exceptions 1, 3, and 4. We reverse and remand for a new trial because, under the totality of the circumstances of this case, the court's refusal to inquire on voir dire as to possible prejudice in favor of police testimony was an abuse of discretion. The limited voir dire failed to inquire as to an element essential to the fairness of the trial.

I

The facts as presented at trial by DEA Agent Robert Valentine present a fairly routine purchase of crack cocaine in a parking lot near an Arlington County video arcade facility. On February 7, 1989, Agent Valentine, acting under cover, was introduced to appellant McIntyre by an individual known as Andre. The three met in a parking lot of the Virginia arcade. Valentine and McIntyre were sitting in the front seat of Valentine's automobile and Andre was in the rear seat. Valentine and McIntyre discussed the proposed sale of cocaine and Valentine asked McIntyre if he had the money with him, and stated that, once Valentine produced the money, McIntyre would call "his boy" to come over and deliver the crack. Valentine then counted out $2,400 in currency, and shortly thereafter appellant Evans entered the automobile and placed the bag of crack on the front seat. Evans advised Valentine to shut the door so the crack could not be seen. After being assured of the weight of the crack by McIntyre, Valentine gave him the $2,400. The parties then left the automobile and no arrests were made at that time.

Andre was not charged in the indictment and was not present at the trial. Both McIntyre and Evans testified that they were present with Andre and Valentine at the time of the drug deal, but they denied any involvement therein and claimed that the transaction was between Andre and Valentine. On cross-examination both defendants admitted that they were wearing electronic beeper pagers at the time of the transaction, and their explanations as to why they needed this equipment did not help their credibility. Both were convicted and appeal. Appellants claim that a statement made by Evans to Agents Valentine and Grubbs shortly after his arrest should have been suppressed because it was made after he had expressed his desire to remain silent and his desire for the services of an attorney.

Two weeks prior to trial, a suppression hearing was conducted and Agent Grubbs and appellant Evans testified. The facts as presented by the government reflected that, in May 1989, McIntyre and Evans were indicted by the grand jury of the Eastern District of Virginia on the present charge. On June 9, 1989, DEA Agents Grubbs and Valentine arrested Evans on a warrant issued pursuant to the indictment charging him with distributing 50 grams or more of crack within 100 feet of a video arcade facility. At the time of this arrest, Grubbs read Evans his rights as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The exact language was read from a printed card carried by the agent and designated as DEA form 13A. It stated:

Before we ask you any questions, you must understand you have the right to remain silent; anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. Do you understand? Are you willing to answer some questions?

Evans stated that he understood the rights that had been read to him, that he did not wish to make a statement at that time, and that he wanted to consult with an attorney before making any statement. Evans was then placed in the rear of the agent's automobile. Agents Valentine and Grubbs were in the front seat, and they proceeded to the Washington District office to process Evans. During this trip, Grubbs explained to Evans what would happen next in connection with the arrest warrant. He advised that Evans would be taken to the Washington office to be processed, finger printed and photographed, and that he would then be taken before a magistrate. Grubbs explained that the magistrate would determine bail, and that any serious question of whether to detain an arrestee pending trial was also decided by the magistrate. If individuals wished to cooperate, Grubbs stated, such information was conveyed to the Assistant United States Attorney, who in turn would convey this information to the magistrate. Evans advised that he understood this, and no further conversation occurred during the trip. The trip to the Washington office took approximately 25 minutes, because it was necessary for the agents to stop and buy gas for the vehicle.

After arriving at the DEA facility, Evans was taken to the processing area, and while he was being fingerprinted he stated that he wished to cooperate and make a statement. This indication of his desire to cooperate came approximately 30 minutes after he had arrived at the DEA facility. Agent Grubbs advised that he wanted to read Evans his Miranda rights again before proceeding, and again DEA form 13A was read and Evans stated he understood his rights, that he had had them read to him on other occasions, and that he was willing to talk without an attorney present. Thereafter, Evans admitted that he had been present in January 1989 with Agent Valentine when there was a distribution of crack. He denied that he had handed the crack to Valentine but stated that he saw McIntyre count the money and that he (Evans) got his share of the money. He also stated that he mostly sold crack in street distribution amounts in Arlington County and that he had made money from this activity. He stated that he purchased crack in open air drug markets in Washington. There was also reference to a .38 caliber revolver that he once owned but he stated that he had given away.

At the suppression hearing Evans admitted that he had been read his Miranda rights both at the time of his arrest and again after he indicated he wanted to make a statement while being processed. Testifying at the hearing, Evans stated that he understood his rights and that they had been read to him on previous occasions; however, he stated that the second time the rights were read they went in one ear and out the other. Evans also stated that while being transported from the place of arrest to the DEA building, Agent Grubbs had advised him that he was looking at ten years to life imprisonment "and if I don't cooperate that my ass would burn in the penitentiary." He also stated that Grubbs told him he should start thinking about cooperation. He stated that the officers talked to him while he was being fingerprinted and asked him where he got his drugs and advised him that cooperation would be the only thing that would get his bond low enough for him to be released. He claimed that he made this statement because he was afraid and wanted to go home.

At the conclusion of the testimony, the court denied the motion to suppress and stated [T]he Court finds that when the defendant was arrested he was read his Miranda warnings, he said that he understood them at that time, but that he did not wish to make a statement and wanted to consult with an attorney. He was transported to D.C. where he was put in a holding cell.

On the way, the agent told him that he was subject to a penalty of a minimum of ten years imprisonment and that he would be taken before a Magistrate who would determine whether or not he would be released pending trial or detained pending trial and that cooperation might bear on that decision. The Court finds nothing impermissible in telling the defendant those facts or those considerations.

Once at the station, defendant was read his rights a second time. The Court is persuaded that he knew and understood what his rights were; that he was familiar with his Miranda rights and that the statements he made thereafter were a knowing, intelligent, and voluntary waiver of those rights. The Court finds that it is not at all persuaded by his testimony that the rights went in one ear and out the other, nor does the Court hold that it is required every time in an instance of this sort that there be a written waiver signed and there is no case that so holds, and the Court does not find that this circumstance or this context would require that.

The Court is persuaded,...