U.S. v. Melanson, 80-1445

• Decision Date: 15 October 1981
• Docket Number: No. 80-1445,80-1445
• Citation: 691 F.2d 579
• Parties: UNITED STATES of America, Appellant, v. James W. MELANSON, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 579

691 F.2d 579

UNITED STATES of America, Appellant, v. James W. MELANSON, et al., Defendants, Appellees.

No. 80-1445.

United States Court of Appeals, First Circuit.

Argued Oct. 10, 1980.

Decided March 23, 1981.

As Amended on Denial of Rehearing April 29, 1981.

Mandate Issued Oct. 15, 1981.

James F. X. Dineen, Asst. U.S. Atty., Boston, Mass., with whom Edward F. Harrington, U.S. Atty., Boston, Mass., was on brief, for appellant.

Michael J. Liston, Boston, Mass., with whom Douglas H. Wilkins and Palmer & Dodge, Boston, Mass., were on brief, for defendants-appellees.

Before COFFIN, Chief Judge, PELL ^* and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

The United States appeals from the district court's order granting the motion of James Melanson to suppress statements that he made in the course of an initial hearing before a United States Magistrate.

I.

On February 7, 1980, James Melanson and Edwina Cyr were arrested by agents of the Bureau of Alcohol, Tobacco and Firearms. According to the government, the events leading up to their arrest were as follows: Earlier in the day, Melanson and Cyr arrived at a public parking lot in a car owned and driven by one Joseph Cooper. Cooper got out of the car, leaving Melanson and Cyr inside, and was thereupon arrested by federal agents on firearms charges. When one of the agents, Timothy Ready, approached the vehicle, Melanson, who was sitting in the front on the far right, yelled at Cyr, sitting in the middle, who slid behind the wheel and started up the car. To avoid being hit, the government claims, Ready leapt onto the hood. Cyr then drove away, spilling Ready and precipitating a chase which ended with the apprehension of Cyr and Melanson. After their arrest, both individuals were informed of their Miranda rights.

The next day, Friday, February 8, 1980, Melanson and Cyr were formally charged with assaulting a federal officer in violation of 18 U.S.C. § 111 (1976) ¹ and were taken before a United States Magistrate for an initial hearing on bail and appointment of counsel. At this hearing Melanson made the statements which, upon a motion in the course of subsequent criminal proceedings, the district court suppressed.

The hearing was attended by Melanson, Cyr, agent Ready and a government attorney, James Dineen. Neither defendant had counsel with them. The hearing opened with Ready signing and swearing to the complaints against the defendants. Cyr and Melanson were then sworn, informed of the charges against them and warned that "each of you have a right to remain silent, and anything you say can be used against you. You also have a right to counsel, and if you can't afford an attorney, the Court will appoint one for you." When first asked if they could afford lawyers, Cyr answered that she could not and Melanson said nothing. The magistrate asked Cyr to "sit down for a moment ... and let me talk to Mr. Nelson (Melanson) for a moment." ²

The magistrate asked Melanson a series of questions about his age, address and family, each of which Melanson answered. When asked for his attorney's name, Melanson replied,

"DEFENDANT NELSON (Melanson): I don't have one, sir. I have to get one.

"THE COURT: You have your lawyer file his appearance or her appearance, whoever you hire, on or before Monday of this week.

"DEFENDANT NELSON: Yes, sir.

"THE COURT: And will you, Marshal, please be sure he has a chance to call his attorney."

Turning to the government attorney, the magistrate asked, "(W)as there any problem with this arrest?" Dineen briefly, related the government's version of the facts underlying the charges against Melanson and Cyr. The magistrate then broke off the inquiry and returned to questioning Melanson about his background. In response, Melanson stated his occupation and denied ever having been arrested before. The magistrate turned back to the government attorney to ask who the driver of the car had been. He was informed by Dineen that Cyr had driven at Melanson's urging. The magistrate then asked for a recommendation on Melanson's bail. Dineen brought out the confusion over Melanson's name, referred to the circumstances of the arrest, claimed Melanson's employer had described his attendance at work as "sporadic" and requested that bail be set at $50,000.

At this point, the magistrate said to Melanson, "All right, Mr. Nelson, or whatever your name is. You have a right to speak on your behalf. What do you say?" The following colloquy then ensued:

"DEFENDANT NELSON: I have nothing to say now. I was going to say, I didn't try to run him over or nothing. When I seen my friend getting stuffed in a trunk by two guys, not dressed in uniform. He did not flash a badge at me. He did not point a gun at me. He was on the hood.-(Unintelligible)-fired a shot at me. I don't care who it was. I'm getting the hell out of there. I am not getting shot at. That bullet went-(Unintelligible)-.

"THE COURT: Excuse me. Put this case on again for Monday morning after we get some details on this fellow. Is Monday time enough to get the details?

"MR. DINEEN: Yes, Your Honor. We will try and obtain more background information on him on the other names and try and run the other names.

"THE COURT: I figure once he gets his lawyer, he can talk to his lawyer more freely than he can here and maybe his lawyer can help us out better with some information. If they are bailable, I don't want to hold them. If they are not, we will hold them. It is as simple as that.

"MR. DINEEN: I'll certainly be available to talk to his attorney.

"THE COURT: All right. Let's set it down for 9:30 on Monday morning. This is for review of bail. Be sure your lawyer is here, Mr. Nelson.

"DEFENDANT NELSON: I got to get a lawyer, but now I am going to be staying here, I don't know if I am going to get one now.

"THE COURT: Well, you said--

"DEFENDANT NELSON: I can't get out to get one.

"THE COURT: Don't you have somebody in mind?

"DEFENDANT NELSON: I don't even know any lawyers.

"THE COURT: Do you want me to appoint a lawyer for you?

"DEFENDANT NELSON: Please.

"THE COURT: I will appoint one, but I am going to tell you. You pay him. If you can afford to pay him, you just said you could afford to pay him, so you are going to have to pay him.

"DEFENDANT NELSON: My boss seems to be throwing-I don't know what he is trying to pull.

"THE COURT: Well, let me appoint a lawyer that I think is capable that can handle your case, and then if you don't want him after Monday morning, you can get your own lawyer, but for the time being, I want a lawyer for each of you people here on Monday morning. I don't know what's going to happen on the next case, Edwina Cyr; but on this one here, I will appoint a lawyer temporarily at least.

"All right, be seated for a minute, Mr. Nelson; and we will see if we can get the lawyer on the phone to be sure he can be here. We want a lawyer that can be here."

Turning to Cyr, the magistrate questioned her much as he had Melanson. He asked about her age, address, occupation, family and arrest record. He requested Dineen to "give me the background here. Dineen responded by describing certain of the events preceding the arrest. During Dineen's narrative, Cyr interjected "No, no, no," and the magistrate remonstrated, "You are going to have your chance to speak. Just a moment." Thereafter more was said by Dineen, and also by agent Ready as to what allegedly had occurred. Finally, the magistrate said "All right" to Cyr, and she immediately launched into her own version. She said she had not known the agents were police, had thought Cooper was being kidnapped, had driven off when Melanson yelled "Put the car in reverse. Get out of here," and did not see the blue police lights until, later, she was told to pull over. At this point, Melanson, seated in the room, did something to attract the magistrate's attention; and the following colloquy immediately occurred during which Melanson uttered the remarks presently in issue.

"THE COURT: What is it?

"DEFENDANT NELSON: It was my fault she took off and went back. I was more or less jumping down her throat.

"THE COURT: This is Mr. Nelson speaking for the record.

"DEFENDANT NELSON: She had nothing to do with the speed and taking off. I told her to do it, and I was screaming at her. She usually does what I tell her to do. She ain't scared of me, so-as far as the light goes, the one they had in the car didn't even work, because I heard one of the cops say it to the other one when they were behind me.

"THE COURT: Did you see the blue light on the car?

"DEFENDANT NELSON: No, there wasn't a blue light. There was just one-as a matter of fact he only had one headlight." (Emphasis supplied.)

After Melanson's outburst, the magistrate went on for a short time with his interview of Cyr, before terminating the morning's proceeding. Although the record is unclear on this score, Melanson's appellate counsel advise us that at the end of this hearing on the morning of Friday, February 8, the magistrate set $50,000 bail for Melanson. Thereafter, on the following Monday morning, February 11, the magistrate, as he had promised, conducted a bail review hearing attended by Melanson and his newly appointed counsel. His bail was reduced to $25,000. Cyr had apparently been released on bail of $10,000 without surety after a resumed bail hearing on the afternoon of Friday, February 8.

Melanson subsequently moved to suppress the statements he made at the bail hearing. The district court granted the motion, but only as to those statements (italicized) which the government had expressed an intention of using in its case in chief. Any ruling on the admissibility of other of Melanson's remarks at the bail hearing was deferred. The court offered two grounds for its decision. First, relying on Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), it held that "in the absence of explicit cautions and full explanation by the...