U.S. v. Robertson

• Decision Date: 03 November 1978
• Docket Number: No. 76-1994,76-1994
• Parties: 3 Fed. R. Evid. Serv. 1499 UNITED STATES of America, Plaintiff-Appellee, v. Andrew Jackson ROBERTSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1356

582 F.2d 1356

3 Fed. R. Evid. Serv. 1499

UNITED STATES of America, Plaintiff-Appellee, v. Andrew Jackson ROBERTSON, Defendant-Appellant.

No. 76-1994.

United States Court of Appeals, Fifth Circuit.

Nov. 3, 1978.

Joseph Chagra, El Paso, Tex. (Court-appointed), for defendant-appellant.

Jamie C. Boyd, U. S. Atty., LeRoy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before BROWN, Chief Judge, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK,

RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN and VANCE, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Although we agree with the result reached by the panel majority, we write anew, upon the Tabula rasa of En banc review, in order to isolate our narrow holding with our focused reasoning. Indeed, we write as much to explicate our holding on the specific issue which we decide as to make explicit our reservation of those other issues which we defer to another day.

On this En banc rehearing, we must determine whether certain admissions made by appellant-defendant, Andrew Jackson Robertson, during a parking lot conversation he had with a confederate and two agents of the Drug Enforcement Administration, were made in the course of plea negotiations, therefore, rendering the admissions inadmissible. We conclude that the parking lot discussion was not a plea negotiation and thus the admissions were not privileged; if it was any kind of bargain, this was a confession bargain neither more nor less. ¹ Given our characterization, our result follows: we vacate Part II. of the panel opinion and affirm the judgment of the District Court, for the reasons we set out below. ²

I.

The significant facts are not in dispute. ³ However, because of the nature of the issue presented, we must carefully study the relevant record facts.

On December 16, 1975, agents of the Drug Enforcement Administration executed a search warrant at a private residence in El Paso, Texas. As a result of the search, the agents seized various chemicals and laboratory equipment allegedly used in the preparation and manufacture of methamphetamine, a Schedule II controlled substance. 21 U.S.C.A. § 812. See also 21 U.S.C.A. § 841(a)(1). The agents arrested four persons in the course of the search: Robertson, Robertson's lady friend, William Richard Butigan, and Butigan's wife. After being given their Miranda ⁴ warnings, the four arrestees were taken to the DEA office in El Paso for processing. As the DEA agents prepared to transport the four arrestees from the DEA office to the courthouse for arraignment before a United States Magistrate, the critical parking lot conversation occurred: Robertson and Butigan discussed their involvement in the crime with the DEA agents. Robertson contends that this conversation constituted plea negotiations. Therefore, he would have us conclude that the admissions he made during the course of this conversation should have been excluded from evidence. After a detailed and careful review of the record, we cannot accept Robertson's characterization of this parking lot conversation as plea negotiations. Therefore, we conclude that the admissions he made during this conversation were properly admitted. See Fed.R.Crim.P. 11(e)(6); Fed.R.Evid. 410.

Robertson's attorney first raised a challenge to the admissibility of the parking lot conversation in a pretrial motion In limine which was concerned with the Bruton ⁵ problems in admitting Butigan's statements against Robertson since Butigan had already pled guilty. ⁶ The District Court granted the defense request to be heard outside the presence of the jury on the issue of admissibility under Bruton before any testimony would be taken concerning the parking lot conversation. At the appropriate point in the trial, the District Court heard testimony on the motion In limine, outside the hearing of the jury. Later, after the District Court had ruled that the accounts of the parking lot conversation were admissible, the same witnesses repeated virtually the same testimony before the jury.

The government first called DEA Agent Pool who had participated in the execution of the search warrant. Tr. 123-141, 233-265. Agent Pool and another DEA agent were assigned to transport Butigan and Butigan's wife from the DEA office to the courthouse for their arraignment. Tr. 134, 237, 258. When Butigan and his wife were placed in the vehicle, before leaving the DEA office parking lot, Butigan asked Agent Pool "if he cooperated, if he could expect to get his wife off." Tr. 135. Agent Pool first testified that Butigan then "said that he was willing to tell us everything we wanted to know, but first he wanted to talk it over with Mr. Robertson before he told us anything." Tr. 135. Before the jury, Agent Pool gave a more detailed account of the exchange:

Q. And then what did Mr. Butigan tell you at that particular time, sir?

A. Initially?

Q. Yes, sir.

A. He said that he wanted to cooperate and tell us everything, and the reason for this he wanted to know if it would help his wife out.

Q. Okay. So what did you tell him, sir?

A. I told him that I couldn't promise him anything, but that we were anxious to have him cooperate with us and that any cooperation he made would probably help him out in the long run.

Q. Okay. Did he do this voluntarily, sir? I mean did he bring this up himself?

A. Yes, sir, we were on our route to take him to the Magistrate when he brought

Q. You were getting ready to take him to the Magistrate, and he tells you voluntarily that he would like to cooperate in order to try and help his wife, is that correct?

A. Yes, sir.

Q. And you told him, of course, that you couldn't promise him anything, is that more or less what you told him sir?

A. Yes, sir.

Q. Now, did Mr. Butigan seem concerned about his wife?

A. Yes, sir.

Q. What was the next thing that happened in regard to Mr. Butigan cooperating?

A. He stated before he said anything, though, that he wanted to talk it over with Mr. Robertson.

Tr. 259-60. Agent Pool then radioed Agent Widener who was transporting Robertson and his lady friend to their arraignment in another vehicle parked nearby. Tr. 260. Agent Pool explained to Agent Widener, outside the hearing of the four arrestees, that Butigan wanted to tell everything but first wished to talk with Robertson. Tr. 136. ⁷ Both Robertson and Butigan indicated to Agent Pool that "they" wanted to "talk" to the agents in hopes of leniency for the women. Tr. 131-32. The agents decided to permit Butigan and Robertson to talk alone, and they were allowed to confer briefly outside the hearing of the agents. Tr. 137, 238-39, 261, 317. The two, Butigan and Robertson, then turned toward the agents and said something like " 'Okay, we'll tell you everything you want to know. What do you want to know?' " Tr. 131. ⁸ Agent Pool participated in the conversation that ensued which concerned the methamphetamine laboratory the agents had found during the search. Tr. 124-26, 240. Agent Pool questioned both Butigan and Robertson and both responded. Though Butigan carried the conversation, Robertson responded by generally acquiescing and by gestures; he specifically answered only a few questions himself. Tr. 129, 137, 138, 241-42, 246, 263-65. Agent Pool was under the impression that the two were responding together. Tr. 130. During the conversation, both Butigan and Robertson individually stated emphatically that the women were not involved. Tr. 132-33, 245-46, 262-63, 317-18. However, Agent Pool further testified that Butigan and Robertson did admit their own involvement in the criminal episode, in detail which need not concern us now. Tr. 128, 242-45, 296-98.

DEA Agent Widener also testified at the hearing on the motion In limine and before the jury. Tr. 141-157, 266-320. He had participated in the search and the arrests. Tr. 141-42, 266-67. He gave the four arrestees their Miranda warnings, at the scene of the search. Tr. 142, 148-49, 267-68, 293. When Agent Widener arrested Robertson, he told him that he had participated in the investigation leading up to the search. Tr. 150. Agent Widener began to question Robertson at the scene, but ceased when Robertson said he did not want to answer any questions and said he wanted to see an attorney. Tr. 150-51, 308. Agent Widener and another DEA agent were assigned to take Robertson and Robertson's lady friend from the DEA office to the courthouse for their arraignment. Tr. 143, 294. Agent Widener testified that before they left the DEA office parking lot Agent Pool called over the radio to "wait-up." Tr. 151, 316, 319. He further testified that when the two agents met outside their vehicles Agent Pool said " 'Mr. Butigan states that he would like to talk to . . . (Robertson) . . . and if they are in agreeance (sic) with each other that they will tell us everything we want to know if we will take in consideration the girls.' " Tr. 151-52. See also Tr. 144. Agent Widener also testified that before Robertson and Butigan were permitted to talk together they were told that the agents had no authority to make any promises concerning the women and that all the agents could do was to "make it known to the Judicial Authorities." Tr. 152. ⁹ Agent Widener, along with Agent Pool, then questioned Robertson and Butigan together. Tr. 144, 145, 295. Butigan generally replied in the first person plural and generally answered for both of them. Tr. 145. The four stood close together and it was Agent Widener's impression that Butigan was speaking for the two of them, since Robertson always nodded his head in agreement. Tr. 297-98, 318-19. Agent Widener's impression was that Robertson was "pretty closed mouthed." Tr. 142.

At the conclusion of the hearing, the District Court decided that there was no Bruton problem. Tr. 153-54. At this juncture, and for the first time, defense counsel objected to the admission of the...