U.S. v. Garot

• Decision Date: 29 September 1986
• Docket Number: Nos. 85-1673,85-1675,s. 85-1673
• Citation: 801 F.2d 1241
• Parties: 21 Fed. R. Evid. Serv. 923 UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee GAROT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Janell Ruth VAN Y, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1241

801 F.2d 1241

21 Fed. R. Evid. Serv. 923

UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee GAROT, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Janell Ruth VAN Y, Defendant-Appellant.

Nos. 85-1673, 85-1675.

United States Court of Appeals Tenth Circuit.

Sept. 29, 1986.

Keith Ward, Asst. U.S. Atty. (Layn R. Phillips, U.S. Atty., with him on the brief), Tulsa, Okl., for plaintiff-appellee.

Richard Ravits, Tulsa, Okl., for defendants/appellants.

Before McKAY, MOORE, Circuit Judges, and SAM, District Judge. ^*

SAM, District Judge.

Robert Lee Garot and Janell Ruth Van Y appeal their jury conviction of mailing obscene matter in violation of 18 U.S.C. Sec. 1461, importation or transportation of obscene matters in violation of 18 U.S.C. Sec. 1462, and certain activities relating to material involving the sexual exploitation of minors in violation of 18 U.S.C. Sec. 2252. The court sitting in the Northern District of Oklahoma suspended imposition of sentence, placed defendants on four years probation, and assessed costs of $50.00 on each count.

Factual Background

On December 18, 1984, a United States Customs Canine Enforcement Officer working at a postal facility located in Houston, Texas, discovered the subject mailings while working with a dog specially trained for the purpose of detecting contraband entering the United States by mail. The dog alerted on a package to which were affixed Amsterdam, Netherlands postage stamps and a Customs Declaration label from "Nederlands Posteruren." The package, addressed to Mr. and Mrs. Sam Garot, 2464 South 128th East Avenue, Tulsa, Oklahoma, was larger and heavier than would be expected for its declared contents, two T-shirts and three towels. In addition, the package contained twenty-four magazines depicting extremely hard-core child pornography, including adolescent, pre-pubescent males and females in various nude poses with some pictures portraying sexual penetration of their bodies. The contents were then inventoried and prepared for a "controlled delivery" to the Tulsa address under the direction of the Customs Service and Postal Service. Upon acceptance of the package from the postal inspector who delivered it, defendant Janelle Van Y ("Van Y") stated, "We've been expecting that," and signed the postal receipt "Sam Garot." Defendants' house was then placed under surveillance until a search warrant was authorized.

Before commencing the search conducted by Agent Straba and two other special agents, Straba read defendants the Miranda Warnings, and defendants stated they understood their rights. The search of the residence revealed twenty-four child pornographic magazines in an unopened package next to a Christmas tree in the living room. In the master bedroom allegedly occupied solely by Garot, a total of forty-three pornographic movie films were found, thirteen of which were of pre-pubescent children engaged in sexual conduct. Also found in the bedroom was one letter-size envelope containing color pictures of children exposing their genitalia.

Van Y told the inspecting officers defendants received the package with the intention to mail it to a friend in California. The address and telephone number of the friend were found in an address book uncovered during the search.

The district court denied Van Y's motion to suppress evidence of her statement.

Appellate Contentions

On appeal, Garot and Van Y contend the district court erred by (1) admitting into evidence statements made by Van Y to Agent Straba after he allegedly promised her leniency, (2) admitting into evidence government's Exhibits No. 2 and No. 4, (3) relying on cautionary instructions concerning Exhibits No. 2 and No. 4 to overcome prejudice to Van Y in the joint trial, and (4) denying defendants a severance of trials.

I. Admission of Van Y's statements to Agent Straba.

At the hearing on defendant Van Y's Motion to Suppress, ¹ Agent Straba testified the following occurred after the search was completed:

I spoke to Ms. Van Y on one of her trips to the bathroom. When she was in the hallway, I was in the bedroom where the movies were discovered, and I spoke with her and told her that after we found the movies in the bedroom there--the child pornographic movies, that we had a very good case against her, and that it would be advisable--that she was going to be in big trouble, and it would be advisable if she talked to me about it.

M.Tr. 8. Denying he made Van Y any promises contingent upon her speaking to him or used on her any coercive tactics, Agent Straba testified, "I told her that if she spoke with us and told us the truth, told us exactly what was happening, and what was--exactly the circumstances, that I would give that information to the Assistant United States Attorney." ² Id. at 9. Van Y then said she wanted to talk to Garot, and the two were allowed to confer in the bathroom. After leaving the bathroom, Van Y entered the master bedroom with Detective Haroldson and Agent Straba and stated she was prepared to "tell" them, but she didn't know whether she should have an attorney. Agent Straba again recited the Miranda rights and advised her to call an attorney if she wanted one. Although she had access to the telephone, Van Y made no effort to contact counsel. Id. at 10.

Referring to Garot's recent heart by-pass operation, Van Y said she would take the blame because Bob (Garot) was not healthy enough to go to jail. Id.; T.Tr., Vol. II, 98. Van Y explained Garot received a call from his friend in California to whom he was to send the controlled delivery package, then she walked into the living room and returned with a red address book in which she pointed out the name, Norman Monte-Eaton, as the intended recipient of the package. T.Tr., Vol. II, 90.

On appeal, Van Y asserts the district court erred by admitting her statements into evidence because, in violation of her Fifth Amendment constitutional rights, Agent Straba coerced her to incriminate herself by promising leniency in return for her confession. Van Y contends she did not voluntarily waive her Miranda right to remain silent because she confessed as a result of fear and the belief she would be granted leniency.

In support of her contention, Van Y cites two United States District Court cases, Hunter v. Swenson, 372 F.Supp. 287 (W.D.Mo.1974) and United States v. Williams, 447 F.Supp. 631 (Del.1978). Hunter addressed facts similar to the instant facts in that a police officer informed the defendant he would relay to the prosecuting attorney all information concerning the defendant's cooperation. However, the officer went further by reciting the nature of the charges that could be filed and conveying a message from the prosecutor setting out the possibility the defendant could be charged with a lesser offense if he would give a truthful statement and if he was not a principal in the criminal activity.

Holding that the officer's statements were not a promise of leniency, the Hunter court set out the governing standards of law for determining whether the defendant reasonably relied upon such promises to the abrogation of his constitutional rights:

Considering the 'totality of the circumstances,' Boulden v. Holman, 394 U.S. 478, 480 [89 S.Ct. 1138, 1139, 22 L.Ed.2d 433] (1969); Haynes v. Washington, 373 U.S. 503, 513 [83 S.Ct. 1336, 1342, 10 L.Ed.2d 513] (1963), if [the] statement was ' "obtained by any direct or implied promises, however slight," 'Bram v. United States, 168 U.S. 532, 542 [18 S.Ct. 183, 186, 42 L.Ed. 568] (1897), the statement was not voluntary; or if [defendant] reasonably believed that a promise of leniency had been made to him, even though no such belief induced his statement, the statement was not voluntary, Grades v. Boles, 398 F.2d 409, 412 (4th Cir.1968); United States v. Harris, 301 F.Supp. 996, 99 (E.D.Wis.1969); United States ex rel. Caserino v. Denno, 259 F.Supp. 784, 790 (S.D.N.Y.1966).

Id. at 298. The court then listed the following four questions that flesh out these standards:

First, was an express or implied promise of lenience made to [defendant]? Secondly, if no promise of lenience was made, did [defendant] reasonably believe that such a promise had been made? Thirdly, if a promise was made or if [defendant] reasonably believed that a promise had been made, was his statement induced by that promise in a 'but for' sense? Fourthly, if a promise was made or if [defendant] reasonably believed that a promise had been made, and this promise or belief induced his statement in a 'but for' sense, was the inducing promise coercive?

Id. In this case, as in Hunter, the record supports negative answers to these questions.

First, no express or implied promise of leniency was ever made to Van Y. Without mentioning specific charges or possible reductions, Agent Straba merely said Van Y could be in "big trouble," and if she were to tell the truth about what occurred, he would relay the information to the prosecutor. Nothing in that statement can be construed to be a promise of leniency, particularly when compared to the discussion of a possible plea negotiation the Hunter court determined did not meet the standards set out above.

Secondly, Van Y did not reasonably believe that a promise of leniency had been made to her. The logical extension of our determination that no such promise was ever made is that any belief Van Y might have entertained concerning leniency is unreasonable where no specific charges or possible reductions were discussed.

Thirdly, we cannot conclude Van Y would not have made her statements but for a real or imagined promise of leniency as she agreed to "take the blame" after citing as her overriding concern, the fear Garot could not withstand imprisonment because of his heart condition.

Fourthly, Van Y was not coerced to make her statements. As the Hunter court stated:

The question in 'plea bargaining' situations is not whether the guilty plea would...