U.S. v. Jardina

• Decision Date: 15 November 1984
• Docket Number: No. 84-4370,84-4370
• Citation: 747 F.2d 945
• Parties: 16 Fed. R. Evid. Serv. 1254 UNITED STATES of America, Plaintiff-Appellee, v. Charles C. JARDINA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 945

747 F.2d 945

16 Fed. R. Evid. Serv. 1254

UNITED STATES of America, Plaintiff-Appellee, v. Charles C. JARDINA, Defendant-Appellant.

No. 84-4370.

United States Court of Appeals, Fifth Circuit.

Nov. 15, 1984.

Rehearing Denied Dec. 13, 1984.

Carolyn A. Ingraham (court-appointed), Lafayette, La., for defendant-appellant.

Joseph S. Cage, Jr., U.S. Atty., D.H. Perkins, Jr., Asst. U.S. Atty., Shreveport, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before CLARK, Chief Judge, RUBIN, and GARWOOD, Circuit Judges.

CLARK, Chief Judge:

I

Jardina appeals his conviction of passing counterfeit federal reserve notes in violation of 18 U.S.C. Secs. 2, 371, and 472. Because the district court committed no error, we affirm.

II

Jardina was arrested along with Richard Freire at approximately 3:00 a.m. on the morning of December 13, 1983. The arresting officer read both suspects their Miranda rights several times before bringing them to the St. Landry Parish Sheriff's Office. At the sheriff's office, Jardina was again read his Miranda rights several times, and he signed waiver of rights forms at 4:03 a.m., 4:47 a.m., and 10:19 a.m. on December 13. After signing one of the forms, Jardina consented to a search of his car, resulting in the discovery of twenty- three counterfeit $100 federal reserve notes.

During the morning of December 13, the St. Landry Parish Sheriff's Office contacted the United States Secret Service in New Orleans. Two special agents arrived at the sheriff's office around 7:00 p.m. that evening. After speaking with Freire, the Secret Service interviewed Jardina around 1:30 a.m. on December 14. The agents orally advised Jardina of his Miranda rights, but did not have him sign a Waiver of Rights form.

Agent Heintz testified the following exchange then occurred:

Q: What did he respond to you after you ... orally advised him of his rights?

A: He stated he knew he didn't have to talk to me. And that he wasn't going to on certain matters. That he was interested in seeing what type of deal he could arrange between the government and his attorney.

The Court: What time was this, the first time?

The Witness: This was about 1:30 a.m., in the morning of December 14.

The Court: Okay. Is this your first contact?

The Witness: That's my first contact with Mr. Jardina.

Q: Who brought up the idea of a deal?

A: Mr. Jardina.

Agent Heintz testified that Jardina did not request an attorney, but rather stated that he already had an attorney in Texas. He also testified Jardina never requested that the questioning cease. Instead Jardina told the agents only that he would decide which questions to answer, exercising this option at such times as he chose. Jardina indicated that he wanted his attorney to work out a deal with the government whereby, in exchange for favorable sentencing consideration, Jardina would help the Secret Service infiltrate the counterfeiting market in Texas. The agents told him that no one other than the district attorney could make such a bargain, but that they would pass this information on.

The agents interviewed Jardina again at 11:45 a.m. on December 14. Jardina was read his rights, but did not sign a waiver form. The third contact between Jardina and the agents was five days later, at 8:55 a.m. on December 19, at which time Jardina signed a Waiver of Rights form. Jardina made inculpatory statements during all three of these interviews.

At trial, the court initially excluded the statements made at the first interview at 1:30 a.m., but allowed the other two. Later, he reversed his ruling over Jardina's objection, allowing the introduction of all three inculpatory statements. The court also allowed introduction of two counterfeit notes that were allegedly passed at the Fast Lane and Union 76 Truck Stops. Finally, the court admitted other counterfeit notes and evidence concerning the counterfeit passing activities of Jardina and Freire in Texas. Jardina alleges error based on each of these items of evidence.

III

Jardina claims the inculpatory statements he made to the Secret Service should have been excluded from evidence, because after he requested an attorney the officers continued to question him.

Jardina is correct in asserting that once an accused requests an attorney, all interrogation must cease until the attorney is present. Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). Jardina also relies on United States v. Cherry, 733 F.2d 1124 (5th Cir.1984) for the proposition that if an accused even equivocally invokes the right to an attorney, future questioning of the suspect must be limited to clarifying whether the person wants to consult with an attorney. Further interrogation "cannot be used as a means of eliciting any incriminating statements from the suspect relating to the subject matter of the interrogation." Id. at 1130. See also Nash v. Estelle, 597 F.2d 513, 517-18 (5th Cir.1979) (en banc), cert. denied, 444 U.S. 981, 100 S.Ct. 485, 62 L.Ed.2d 409 (1979). Jardina contends that he indecisively invoked his right to an attorney when he suggested that through his lawyer he wanted to work out a deal with the government.

Cherry does not support Jardina's case. Cherry's remarks included the statement, "Maybe I should talk to an attorney before I make a further statement," followed a few moments later by: "Why should I not get an attorney?" Id. at 1130.

In contrast to Cherry's statements clearly evincing equivocation about a present desire to have the advice of counsel, Jardina never asked that counsel be present at the ongoing questioning. Indeed, the words he spoke clearly indicated that he wished his attorney to work out a cooperative deal with the government in the future. Jardina stated without the slightest ambiguity that he would then and there answer some questions but not others. The word "attorney" has no talismanic qualities. A defendant does not invoke his right to counsel any time the word falls from his lips. See Nash, supra, at 519; Thompson v. Wainwright, 601 F.2d 768, 772 (5th Cir.1979). Jardina's statements and actions did not invoke any present right to counsel.

The district court did not err in admitting the statements Jardina made during his three interviews by the Secret Service.

In reviewing a trial court's ruling on a motion to suppress based on live testimony at a suppression hearing, the trial court's purely factual findings must be accepted unless clearly erroneous, or influenced by an incorrect view of the law, and the evidence must be viewed in the light most favorable to the party prevailing below, except where such a view is either not consistent with the trial court's findings or is clearly erroneous considering the evidence as a whole.

United States v. Maldonado, 735 F.2d 809, 814 (5th Cir.1984) (citations omitted).

The judge based his rulings upon the testimony that Jardina had received three Miranda warnings from the St. Landry Parish investigators before the interviews with the Secret Service. While acknowledging that the interrogations were separate, the court was convinced that Jardina was aware of his rights. Agent Heintz again orally informed Jardina of his rights prior to their discussions. Finally, the court found that Jardina selectively waived his right to remain silent by indicating that he would respond to some questions and not to others, and by exercising his voluntarily created option.

In United States v. Young, 527 F.2d 1334 (5th Cir.1976), the defendant had been advised of his rights three times, had indicated that he understood them, and had executed two written waivers. No threats or promises were used to secure Young's statements. Our Circuit affirmed Young's conviction because the trial court's finding of voluntariness was not clearly erroneous. Id. at 1335. Likewise, we hold that the court's decision in the case at bar was sufficiently supported by the evidence and is not clearly erroneous.

IV

Jardina next contends that the statements he made to the Secret Service should be excluded because he was detained in the St. Landry Parish Sheriffs Office for six days before being brought before a magistrate. The federal agents were aware that it was likely federal charges would be brought against Jardina. Thus he claims, he should have had his initial appearance within hours, not days, of his apprehension. Federal Rule of Criminal Procedure 5(a) requires that "any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate ...." The United States Supreme Court has held that a delay of twenty-four hours could be unreasonable, and excluded a confession obtained during the interim. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).

Jardina may not rely on Mallory, however. The initial detention was in state custody. Jardina was in federal custody only two to three hours before he was taken before a magistrate. "Absent collusion between state and federal authorities, only the period of federal detention is relevant to a claim of unnecessary delay. United States v. Brown, 459 F.2d 319, 324 (5th Cir.1971)." Young, supra, at 1335 n. 2. Young held that a period of three and one-half hours was not an unreasonable delay. Id. Because Jardina has neither alleged nor proven that collusion existed between the state and federal authorities, we hold that no unreasonable delay occurred, and his statements were admissible.

V

Jardina next claims that the court erred in allowing the introduction at trial of two counterfeit $100 bills allegedly passed at the Union 76 and Fast Lane Truck Stops in Lafayette, Louisiana. He claims that the evidence was insufficient to establish that he was the person who passed the notes because there was no evidence linking him to their passing at either location. Specifically, he contends...