U.S. v. Nixon, 75-3820
| Citation | 571 F.2d 1121 |
| Decision Date | 09 March 1978 |
| Docket Number | No. 75-3820,75-3820 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David H. NIXON, Jr., Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
James P. F. Egbert (argued), Tucson, Ariz., for defendant-appellant.
Ron Jennings, Asst. U. S. Atty. (argued), Tucson, Ariz., for plaintiff-appellee.
Before HUFSTEDLER and CHOY, Circuit Judges, and SMITH, * District Judge.
The Government's petition for rehearing is granted. The opinions heretofore filed are withdrawn. In their stead, the following per curiam opinion is substituted:
Upon the authority of United States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir. en banc No. 76-2241, 1978) (Slip Op'n p. 309, Jan. 30, 1978), the questioning of a suspect in custody can be resumed if the Government bears its heavy burden of proof that the suspect effectively waived his prior request for assistance of counsel.
The Government failed to bear its burden of proving waiver of counsel in this case. The interrogation followed hard on the heels of the demand for counsel. Nixon's right under those circumstances to have questioning cease was not scrupulously honored. (Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1976); United States v. Rodriguez-Gastelum, supra.)
The motion to suppress the inculpatory statements should have been granted.
REVERSED.
* Honorable Russell E. Smith, Chief Judge, United States District Court, District of Montana, sitting by designation.
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...knowingly and intelligently waived those rights. See United States v. Martinez, 588 F.2d 1227, 1235 (9th Cir. 1978); United States v. Nixon, 571 F.2d 1121 (9th Cir. 1978). By their very nature, these rights guaranteed by Miranda cannot end upon conviction and sentencing; when a convicted de......
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...United States v. Grant, 549 F.2d 942 (4th Cir.), Cert. denied, 432 U.S. 908, 97 S.Ct. 2955, 53 L.Ed.2d 1081 (1977); United States v. Nixon, 571 F.2d 1121 (9th Cir. 1978); Government of Canal Zone v. Gomez, 566 F.2d 1289 (5th Cir. 1978). A waiver obtained in such a case is likely to be the r......
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...60 L.Ed.2d 286 (1979).) The interrogation did not follow "hard on the heels of the demand for counsel." (See, e. g., United States v. Nixon, 571 F.2d 1121 (9th Cir. 1978).) On the other hand, Nick is mildly retarded and has limited verbal skills. Nick himself testified that he did not know ......
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