U.S. v. Jacobs, 95-3029EA

• Decision Date: 06 December 1996
• Docket Number: No. 95-3029EA,95-3029EA
• Citation: 97 F.3d 275
• Parties: 45 Fed. R. Evid. Serv. 1013 UNITED STATES of America, Appellee, v. Kevin JACOBS, aka Maurice Hawkins, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 275

97 F.3d 275

45 Fed. R. Evid. Serv. 1013

UNITED STATES of America, Appellee, v. Kevin JACOBS, aka Maurice Hawkins, Appellant.

No. 95-3029EA.

United States Court of Appeals,

Eighth Circuit.

Submitted April 9, 1996.

Decided Oct. 3, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Dec.

6, 1996. ^*

Paul D. Groce, argued, Little Rock, AR, for appellant.

Linda B. Lipe, argued, Little Rock, AR (Paula J. Casey, on the brief), for appellee.

Before BEAM and MURPHY, Circuit Judges, BURNS, ^** District Judge.

JAMES M. BURNS, District Judge.

On April 7, 1995, a jury convicted Jacobs of conspiracy to commit bank robbery in violation of 18 U.S.C. § 371 and armed bank robbery in violation of 18 U.S.C. § 2113. The district court ¹ sentenced Jacobs to 60 months imprisonment on the first count and 300 months on the second count, the sentences to run concurrently and to be followed by a five-year term of supervised release. Defendant was also ordered to pay restitution in the sum of $1,609.00.

Jacobs appeals his conviction and seeks a new trial on the following grounds:

1. The district court erred when it instructed the jury by reading an incorrect list of overt acts purportedly committed by defendant;

2. The district court erred when it admitted defendant's confession into evidence; and

3. The district court erred when it required defendant to conduct over the telephone a significant portion of his cross-examination of the government's main witness against him. For the reasons articulated below, we AFFIRM Jacobs's conviction.

JURY INSTRUCTIONS

Jacobs contends he was prejudiced when the district court misinstructed the jury by reading an incorrect list of overt acts purportedly committed by defendant. Jacobs further asserts he should have been permitted to reopen his defense following the court's error.

After the district court instructed the jury, it discovered its instructions included an incorrect list of overt acts that were drawn from one of the government's early drafts of the Indictment. The next morning, before closing arguments and the jury's deliberations began, the court informed the jury of its error and re-instructed the jury with the correct list of overt acts purportedly committed by Jacobs.

"[P]roperly objected to jury instructions" are reviewed for harmless error pursuant to Fed.R.Crim.P. 52(a). United States v. Ryan, 41 F.3d 361, 366 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995). The test "for determining the adequacy of jury instructions is 'whether the instructions, when taken as a whole, adequately advise the jury of the essential elements of the offenses charged and the burden of proof required of the government.' " United States v. Bishop, 825 F.2d 1278 (8th Cir.1987) (quoting United States v. Sherer, 653 F.2d 334, 337 (8th Cir.), cert. denied, 454 U.S. 1034, 102 S.Ct. 573, 70 L.Ed.2d 478 (1981)).

We are not persuaded by Jacobs's arguments that the court's initial error prejudiced him or that the court's subsequent action failed to cure the error. We find the district court's error was harmless "once remedial action was properly taken," United States v. Nabors, 762 F.2d 642, 648 (8th Cir.1985), particularly since the district court cured its error before counsel began their closing arguments and before the jury began its deliberations.

Accordingly, we hold the district court's instructions, taken as a whole, adequately advised the jury of the essential elements of the offenses charged and the burden of proof required of the government.

JACOBS'S CONFESSION

Jacobs asserts the district court erred when it admitted his confession because his confession was involuntary and coerced. Jacobs also contends his confession was inadmissible because during the interrogation he

requested and was denied right to counsel in violation of the Sixth Amendment.

Voluntariness of Jacobs's Confession

A district court's decision as to whether a defendant's confession was voluntary is reviewed de novo. United States v. Kilgore, 58 F.3d 350, 353 (8th Cir.1995) (citing United States v. Johnson, 47 F.3d 272, 275 (8th Cir.1995)).

The test for determining the voluntariness of a confession is "whether the confession was extracted by threats, violence, or direct or implied promises" to such a degree that defendant's will was overborne, United States v. Kilgore, 58 F.3d at 353, and " 'his capacity of self-determination critically impaired.' " Sumpter v. Nix, 863 F.2d 563, 565 (8th Cir.1988) (quoting Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961)). The court must "inquire into the totality of the circumstances in assessing the conduct of law enforcement officials and the suspect's capacity to resist any of pressure." United States v. Kilgore, 58 F.3d at 353 (citations omitted).

The record reflects Jacobs was interrogated for approximately two hours by the Los Angeles police regarding his possible involvement in a murder that took place in California. Following that interrogation, he was interviewed by a special agent for the FBI. During the interview with the Los Angeles police, Jacobs said he was out of state at the time of the murder and, as part of his alibi, he stated that he committed armed bank robbery in Arkansas around the time of the murder. In his later interview with the FBI agent, Jacobs reiterated that he was in Arkansas robbing a bank around the time of the murder and also identified himself as one of the bank robbers in the bank surveillance photographs taken during the robbery. Jacobs now contends he confessed to the bank robbery and identified himself in the bank surveillance photographs only after the Los Angeles police "threatened" him by referring to the possibility that the murderer might be subject to the death penalty.

After hearing the testimony of the LAPD officer and the FBI agent who interviewed Jacobs, and after listening to the tape of the interview with the Los Angeles police, ² the district court concluded Jacobs's confession was voluntary. We agree.

On the interview tape, Jacobs first brings up his participation in the Arkansas bank robbery on his own initiative long before the officers make any oblique references to the possibility that the person who committed the murder might be subject to the death penalty. Later in the interview, Jacobs voluntarily elaborates on his involvement in the bank robbery as a crucial part of his alibi.

After reviewing the record and listening to the interview tape, we find the totality of the circumstances does not demonstrate that Jacobs's will was overborne or that his capacity for self-determination was critically impaired. We hold, therefore, the district court did not err when it concluded Jacobs's confession was voluntary.

Admissibility of Jacobs's Confession

Jacobs also asserts he was denied his right to an attorney in violation of the Sixth Amendment even though he asked for one near the end of his interrogation by the LAPD ³ and, therefore, his confession should not have been admitted as evidence.

A district court's decision to admit or to suppress a defendant's confession is reviewed under a clearly erroneous standard. United States v. Meirovitz, 918 F.2d 1376, 1379 (8th Cir.1990), cert. denied, 502 U.S. 829, 112 S.Ct. 101, 116 L.Ed.2d 71 (1991). We must affirm the district court's decision to admit defendant's confession unless its decision was " 'unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, in light of the entire record, we are left with a firm and At the beginning of the taped interview with the Los Angeles police, Jacobs was advised of and orally waived his Miranda rights. Jacobs was then interviewed by an FBI agent, was again advised of his Miranda rights, and waived his rights both orally and in writing.

definite conviction' " that the district court made a mistake. Id. (quoting United States v. Jorgensen, 871 F.2d 725, 728 (8th Cir.1989)).

During his interview with the Los Angeles police, Jacobs said he would want a lawyer in the event he had to take a polygraph test. Jacobs did not request a lawyer at any other time. The district court found Jacobs's request for an attorney was limited to the specific circumstance of taking a polygraph test. Jacobs did not take a polygraph test; therefore, Jacobs was not denied his constitutional right to counsel.

After listening to the tape and reviewing the transcript of that portion of the tape, we agree with the district court; therefore, we find the statements made by Jacobs before and after his request were admissible as evidence. See Connecticut v. Barrett, 479 U.S. 523, 529, 107 S.Ct. 828, 832, 93 L.Ed.2d 920 (1987) (defendant expressed a desire for the presence of counsel only in the event he had to make a written statement and, therefore, all of defendant's statements unconnected to making a written statement were admissible). See also United States v. Boyer, 914 F.2d 144, 146 (8th Cir.1990) ("[A] limited invocation of the right to counsel does not preclude the admissibility of statements a defendant makes which fall outside the limited invocation."), cert. denied, 499 U.S. 908, 111 S.Ct. 1110, 113 L.Ed.2d 219 (1991).

In summary, we find nothing in the record to indicate the district court erred when it concluded Jacobs's confession was voluntary. We also find the district court's decision to admit Jacobs's confession was supported by substantial evidence and based on a correct interpretation of the applicable law. We hold, therefore, the district court did not err when it admitted Jacobs's confession as evidence.

RIGHT OF CONFRONTATION

Jacobs also contends the district court erred when it required him to conduct by telephone a significant portion of his cross-examination of Kimberly Johnson, the government's main witness against him, in violation of his rights under the Confrontation Clause of the Sixth Amendment. ⁴

Background

When Johnson was...