U.S. v. Gillyard, 83-5109
| Decision Date | 28 February 1984 |
| Docket Number | No. 83-5109,83-5109 |
| Citation | 726 F.2d 1426 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Samuel Charles GILLYARD, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Duane Deskins, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellant.
Randy Sue Pollock, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellee.
Appeal from the United States District Court for the Central District of California.
Before SKOPIL, FERGUSON and CANBY, Circuit Judges.
The government appeals an order of the district court suppressing the post-polygraph confession of the defendant. The district court concluded the defendant's confession was the result of an invalid waiver of his Miranda rights in violation of the Fifth Amendment's Due Process Clause, and, also, was obtained in violation of the defendant's Sixth Amendment right to counsel. The government has taken an interlocutory appeal, pursuant to 18 U.S.C. Sec. 3731.
The parties now agree that since adversarial judicial proceedings had not been commenced against the defendant, the defendant's Sixth Amendment rights had not attached. United States v. Zazzara, 626 F.2d 135, 138 (9th Cir.1980). We hold, however, that the record sustains the finding of the district court that the defendant had not waived his Miranda rights and we therefore affirm.
On January 10, 1983, a grand jury subpoena for fingerprints, palmprints and handwriting exemplars was served on Gillyard, a postal employee, by two postal inspectors in connection with an investigation into a scheme to cash forged checks stolen from the mail. At the time of service the agents questioned the defendant and he denied his involvement in the alleged offense. The agents proposed that he take a polygraph test to clear his name of suspicion and he agreed.
About a month later, postal inspectors went to the West Branch Post Office in Los Angeles, where Gillyard was employed as a postal carrier. After introducing themselves, the postal inspectors asked the defendant whether he was still agreeable to taking the polygraph test at their office, and he said he was. Although Gillyard wanted to drive his own automobile to the polygraph test site, the postal inspectors asked him to ride with them, and promised to return him to the West Branch Post Office before his normal departure time. The defendant agreed to ride with the postal inspectors to their office at the Terminal Annex Building in Los Angeles. At no time was the defendant arrested.
Upon arriving at the Terminal Annex Building, at 10:20 a.m. on February 17, 1983, defendant Gillyard was directed to the polygraph room where he was introduced to the polygraph examiner, Scott Barry. Prior to any questions, the polygraph examiner read Gillyard his Miranda rights from a standard form used by the Postal Service. Then, the defendant was presented with the form on which he acknowledged, in writing, that he understood his rights and waived them. 1 The defendant was asked if he understood his rights and if he was forced to come in to take the polygraph test. The defendant said no--that he volunteered to take the test. Thereafter, the polygraph examiner presented and read aloud to the defendant the "Agreement to Take a Polygraph Examination," which indicated the polygraph test was voluntary and given without threat, promise of reward or immunity. 2 Based on the results of the polygraph test, the examiner told Gillyard that he was being deceptive about his involvement in embezzling checks from the mail. The examiner initiated a brief post-polygraph interview with Gillyard. During the interview, the examiner indicated to Gillyard that any truthful information he provided would be helpful and would be made known to the United States Attorney's office. However, the defendant, who remained calm, continued to deny any criminal involvement. After approximately thirty minutes, the examiner left the polygraph room. Postal inspectors Christine Birdsall and Michael Kletter then entered the room and questioned the defendant for approximately one hour. The agents did not advise the defendant of his Miranda rights. They did not tell him that he could refuse to talk to them or that he was free to leave. The two postal inspectors reminded the defendant that he had failed the polygraph test, and, now, should tell the truth. During questioning by the agents the defendant continued to deny his involvement. The defendant did not ask to leave, for a lawyer, or to discontinue the questioning, nor was he arrested or physically restrained in any manner. Finally, after about two and a half hours, the defendant orally confessed and signed a written confession admitting his involvement in embezzling checks from the mail.
2] The defendant indicated he understood and signed the form, and the examiner began the polygraph test.
Thereafter, the defendant fell asleep for a short period. After corroborating the information provided in the defendant's confession, the postal inspectors returned the defendant to the West Branch Post Office at 3:30 p.m., which was the defendant's usual quitting time. About one month later, on March 18, 1983, the defendant was indicted on one count of conspiracy and three counts of embezzlement of mail in violation of 18 U.S.C. Secs. 371 and 1709.
Prior to trial, the district court conducted an evidentiary hearing on Gillyard's motion to suppress his confession. In his motion to suppress, Gillyard claimed his confession was involuntary and made without an understanding of the consequences to him. The court heard testimony from government witnesses and from Gillyard, who related the circumstances surrounding the interrogation and its emotional effect on him. At the conclusion of the testimony, the district court indicated that the major problem in the government's case was that the inspectors obtained the waiver of Gillyard's rights by telling him that he would only be subjected to a polygraph test. The failure of the postal inspectors to re-advise Gillyard of his Miranda rights after the polygraph test ended and before the direct questioning began raised a serious question under Wyrick v. Fields, --- U.S. ----, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982). The government argued that the Supreme Court's opinion in Wyrick v. Fields did not require a separate Miranda warning before the agents began their questioning of the defendant after the polygraph examination.
At the conclusion of the hearing the district court suppressed the defendant's confession. With regard to the Fifth Amendment Due Process issue, which is the only matter involved in this appeal, the district court found under the totality of the circumstances that the defendant did not make a voluntary, knowing and intelligent waiver of his Miranda rights.
The Fifth Amendment right to counsel first arises when an individual is held for custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). "Whether a person is 'in custody or otherwise deprived of his It would serve no purpose to again recite the facts which led the district court to conclude that the defendant was in custody after the post-polygraph questioning by the two postal authority agents. The case on its facts is similar to United States v. Lee, 699 F.2d 466 (9th Cir.1982), wherein it was held that an innocent person reasonably could conclude that he was not free to leave.
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...The rule is simply an unjustifiable restriction on reasonable policy questioning.” Id. at 48–49, 103 S.Ct. 394. In United States v. Gillyard, 726 F.2d 1426 (9th Cir.1984), the federal government argued that Wyrick established a per se rule that Miranda warnings are not required for a post-p......
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95-749 La.App. 3 Cir. 4/17/96, State v. Bolden
...counsel at any time before confessing to the Spicer murder. Although the defendant cites a factually similar case, United States v. Gillyard, 726 F.2d 1426 (9th Cir.1984), this is a federal circuit case, not binding upon this court. Defendant Gillyard agreed to take a polygraph and signed a......
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...the first time, and who conducted the polygraph examination, also conducted the postexamination questioning. Cf. United States v. Gillyard, 726 F.2d 1426 (C.A.9, 1984). Therefore, as in Wyrick, it was not reasonable to expect a rewarning of those rights at that time. Finally, and most impor......