U.S. v. Hart

• Decision Date: 05 March 1984
• Docket Number: No. 82-1637,82-1637
• Citation: 729 F.2d 662
• Parties: 15 Fed. R. Evid. Serv. 450 UNITED STATES of America, Plaintiff-Appellee, v. Don L. HART, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 662

729 F.2d 662

15 Fed. R. Evid. Serv. 450

UNITED STATES of America, Plaintiff-Appellee, v. Don L. HART, Defendant-Appellant.

No. 82-1637.

United States Court of Appeals Tenth Circuit.

March 5, 1984.

Rehearing Denied June 7, 1984.

Peter R. Bornstein of Berenbaum & Berenbaum, Denver, Colo., for defendant-appellant.

Richard N.W. Lambert, Asst. U.S. Atty., Salt Lake City, Utah (Brent D. Ward, U.S. Atty., Salt Lake City, Utah, was also on brief), for plaintiff-appellee.

Before HOLLOWAY and McKAY, Circuit Judges, and BROWN, District Judge. ^*

HOLLOWAY, Circuit Judge.

A jury found the defendant, Don L. Hart, guilty on eleven counts charging interstate transportation of firearms by a convicted felon, ¹ 18 U.S.C. Sec. 922(g), and two counts charging unlawful possession of a .45 caliber machine gun. ² 26 U.S.C. Sec. 5861(d), (h). ³ The firearms were found in the warrantless search of defendant's motorhome. On a trip from Idaho to Utah, the defendant was stopped because the police had reports that he was holding a woman against her will. This proved not to be true, but in a search following this stop the firearms were found. This stop was the subject of an earlier appeal in which we reversed the trial court's decision to suppress the firearms. ⁴

After the police found the weapons, the defendant was arrested and advised of his Miranda rights. II R. 202-03. The next day he was questioned by Officer Fox and Agent McClintock. At this time the defendant Hart explained that he had taken the machine gun as collateral for a $3,000.00 loan. II R. 238, 247. The defendant also admitted that while in Idaho he and Mr. Hege had loaded his motorhome with a number of weapons. Id. at 248. Moreover, defendant admitted that he was aware that it was illegal for him to possess firearms without a certificate of release, and although he had applied for one, he had not been granted such release. Id. at 248-49.

For reversal defendant contends that: (1) his confession was admitted in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); (2) the trial court failed to adequately admonish the jury not to discuss the case and to avoid media reports about the case; (3) the absence of a transcript of the voir dire of the jury from the record on appeal prejudiced him; (4) the trial court made various erroneous evidentiary rulings; (5) the firearms should have been suppressed; and (6) because the confession was improperly admitted, there was insufficient evidence to sustain the convictions. ⁵ We disagree and affirm.

I.

Defendant challenges the admission of his inculpatory statement made to the police while he was in custody. He argues that the record establishes neither that he was advised of his Miranda rights, nor that he waived them. Moreover, defendant asserts that a Jackson v. Denno hearing should have been held to determine whether his confession was voluntary.

A.

The record does not reveal the substance of the advice of rights read to defendant, just prior to his making inculpatory statements to ATF Agent McClintock and Detective Fox of the Utah County Sheriff's office. Nor does the record show any express waiver of his rights before defendant made his inculpatory statements. It shows only that Agent McClintock read to the defendant from a printed card, and that the defendant then agreed to talk with the officers. II R. 237-38. There is no indication of what the contents of this card were. Defendant argues that this is insufficient to show that his inculpatory remarks were not admitted in violation of Miranda.

Defendant makes this argument for the first time on appeal. He neither made a suppression motion before trial, see Fed.R.Crim.P. 12(b)(3), nor objected to the admission of the statement, see Fed.R.Evid. 103, nor moved to strike it during trial. No explanation or excuse has been offered for these omissions. In such circumstances where no objection on Miranda grounds was made to the use of the confession throughout the trial court proceedings, we hold that the objection was waived.

Rule 12(b)(3), Fed.R.Crim.P., provides that suppression motions must be made prior to trial, and Rule 12(f) provides that failure to make such a motion constitutes a waiver. This rule applies to confessions allegedly obtained through unconstitutional means. The advisory committee notes explain that Rule 12(b)(3)

makes clear that objections to evidence on the ground that it was illegally obtained must be raised prior to trial. This is the current rule with regard to evidence obtained as a result of an illegal search.... It is also the practice with regard to other forms of illegality such as the use of unconstitutional means to obtain a confession.

Fed.R.Crim.P. 12(b)(3) advisory committee note to 1974 amendment (citations omitted); see also 1 C. Wright, Federal Practice & Procedure Sec. 193, at 703-04 (1982). ⁶

B.

Defendant also argues that the trial court should have held a Jackson v. Denno, hearing to determine whether defendant's confession was voluntary. ⁷ However, defendant's trial counsel never made a motion for such a hearing, and there was no contemporaneous objection made when the confession was introduced. Moreover, our review of the record reveals that there was no evidence introduced to raise an issue of voluntariness.

On appeal, defendant urges for the first time that a voluntariness hearing should have been held. To accept defendant's position, we would have to find that the trial court has an obligation sua sponte to hold a voluntariness hearing, even when the defense does not challenge the admission of the confession at trial by any means, and no facts before the trial court suggest that the confession might be involuntary. We cannot agree.

Recently in United States v. Janoe, 720 F.2d 1156, 1163-65 (10th Cir.1983), we held that the failure to hold a Jackson v. Denno hearing was not harmless error. However, the defendant there on the morning of trial orally moved to suppress his confession as involuntary, inter alia, because it was made while he was intoxicated; he objected during trial to testimony concerning the confession on the same ground; and he again objected when the Government offered the signed waiver of his Miranda rights. Moreover during trial the testimony gave some indication of intoxication. Janoe, supra, 720 F.2d at 1164 n. 14. We rejected the Government's contention that it was harmless error to fail to hold the hearing, mandated by Jackson v. Denno and Sec. 3501(a), on the voluntariness issue. The issue was clearly raised, and we remanded for such a hearing.

As noted, here the defendant did not make the voluntariness of his confession an issue by any motion or objection before or during trial, and the record reveals that no evidence presented raised this issue. ⁸ Trial courts need not hold a Jackson v. Denno hearing on their own motion unless there is an issue of voluntariness. See United States v. Powe, 591 F.2d 833, 842 (D.C.Cir.1978) ("unless the voluntariness question is brought to attention of the trial court, the trial judge generally is not required to raise the issue sua sponte, and a Jackson v. Denno hearing is not constitutionally mandated"); United States v. Stevens, 445 F.2d 304, 305 (6th Cir.) (per curiam), ("hearing is required only if the issue of voluntariness is raised") cert. denied, 404 U.S. 945, 92 S.Ct. 298, 30 L.Ed.2d 260 (1971); Jacobson v. People of State of California, 431 F.2d 1017, 1019 (9th Cir.1970) ("Only where there is an objection to a confession on the grounds it is involuntary or where there is present in the record evidence tending to show such involuntariness, need there be held [a Jackson v. Denno hearing]"). Indeed, Sec. 3501(a) speaks of the court's duty to hold a hearing to "determine any issue as to voluntariness." 18 U.S.C. Sec. 3501(a).

Because there was no issue of voluntariness raised, the trial court had no duty to hold a Jackson v. Denno hearing and there was no error in not holding such a hearing or in the admission of the confession.

II.

The defendant argues further that in violation of his due process rights he was denied a fair trial because (1) the trial court failed to adequately admonish the jury about discussions and communications concerning the case; and (2) the trial court made erroneous evidentiary rulings. We find neither contention persuasive.

A.

Defendant argues that the jury was inadequately admonished not to discuss the case and to avoid media reports concerning the case. He says that when the jury members "were excused from court they were either told by the trial judge to 'remember what I previously told you,' or to not talk to anyone about the case." Appellant's Opening Brief at 8. It appears that the judge was referring to some remarks he made to the jurors after they were sworn and before a short recess, ⁹ although the record does not actually reveal what the judge said to the jury at that time. Defendant asserts that we should in any event require trial courts to give a more complete admonition than was given here. ¹⁰

Our review of the record demonstrates that before the break for lunch on the first day of trial, the judge gave the jury no admonition other than to remember what he had previously told them. II R. 21. As noted, we have no record of a previous admonition on this subject. When court recessed for the day, however, the judge made a further statement. He said that "[i]t's important that you remember what I've previously told you. Don't talk to anybody about the case. Let's keep an open mind. Let's get the whole story. Thank you, and you may be excused." II R. 128. The following day, at each recess the judge told the jury to remember what he had previously told them. II R. 172, 214, 268, 277, 312. At the end of this day the parties had finished presenting the evidence, and the judge admonished the jury as follows:

Oka...