U.S. v. Robinson, s. 78-5067

• Decision Date: 08 March 1979
• Docket Number: 78-5068,Nos. 78-5067,s. 78-5067
• Citation: 593 F.2d 573
• Parties: UNITED STATES of America, Appellant, v. Beecher Belve ROBINSON, Jr., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 573

593 F.2d 573

UNITED STATES of America, Appellant, v. Beecher Belve ROBINSON, Jr., Appellee.

Nos. 78-5067, 78-5068.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 16, 1978.

Decided March 8, 1979.

William B. Cummings, U.S. Atty., Alexandria, Va. (Justin W. Williams, Asst. U.S. Atty., Creed C. Black, Jr., Sp. Asst. U.S. Atty., Alexandria, Va., on brief), for appellant.

John Kenneth Zwerling, Richmond, Va. (Zwerling & Shapiro, Richmond, Va., on brief), for appellee.

Before WIDENER and HALL, Circuit Judges, and HOFFMAN, ^* District Judge.

WIDENER, Circuit Judge:

The defendant, Beecher Belve Robinson, Jr., was indicted in four counts as a convicted felon for possession of firearms, 18 U.S.C.App. § 1202(a), and for receipt of firearms, 18 U.S.C. § 922(h)(1). In a suppression hearing held prior to trial, the defendant moved to suppress all statements he had made to police officers (he had two interviews with a federal agent while in custody on a state breaking and entering charge) during the investigation of this and related cases. The district court suppressed the statements to the federal agents because in its view they were "patently involuntary." ¹ On December 16, 1977, the government filed a notice of appeal under 18 U.S.C. § 3731 and simultaneously filed a motion for a continuance of the trial court proceedings. The case originally had been scheduled for trial on December 22, 1977. On that date, the district judge denied the motion for continuance and called the case for trial. The government stated that it was not prepared to try the case without the suppressed statements. The district court then dismissed the indictment for want of prosecution over the government's objection. The government appeals from the denial of the continuance and the dismissal of the indictment. We hold that the confession was not patently involuntary and that the trial court abused its discretion by refusing to grant a continuance. We therefore reverse and remand for further proceedings.

The granting of the motion to suppress in this case is appealable by the government under 18 U.S.C. § 3731, and the first issue before us is whether the district court abused its discretion in refusing to grant the government's request for a continuance pending appeal. We believe the answer to this question can be found in the legislative history of § 3731. Prior to 1968, the government was not able to appeal from the granting of a motion to suppress evidence. See DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962); Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957). Congress remedied this situation in 1968 by amending § 3731 to allow the government to appeal from suppression orders. P.L. 90-351, 82 Stat. 237. The legislative history of this and like legislation reveals two of the major purposes behind the amendment. See H.Rep. No. 603, 90th Cong., 1st Sess. (Aug. 24, 1967) (to accompany H.R. 8654); 114 Cong.Rec. 14787 (May 23, 1968); 113 Cong.Rec. 24946 (Sept. 11, 1967); S.Rep. No. 91-1296, 91st Cong. 2d Sess. (Oct. 8, 1970). First, the amendment was designed to foster a consistent development of Fourth Amendment law. The lack of full appellate review prior to 1968 resulted in inconsistent district court rulings which contributed to the general uncertainty in the law of search and seizure and confessions. By allowing the government to appeal, Congress was told the courts of appeals and the Supreme Court would have a better opportunity to pass on important questions in this area more quickly. This appellate guidance would help reduce the inconsistency in trial court decisions and aid the development of a rapidly expanding area of constitutional litigation. See H.Rep. No. 603 supra, at 3; 114 Cong.Rec. at 14788 (remarks of Senator Allott); 113 Cong.Rec. at 24947 (remarks of Congressman Railsback). As the House Committee on the Judiciary recognized in an earlier report on the same subject:

Ironically, the ultimate question of whether the district judge was right initially in suppressing the evidence cannot be determined, because the Government lacks the right to appeal this preliminary ruling. And without the right to appeal, the Government cannot obtain decisions from the appellate courts which would further help to formulate and establish definitive case law on the subject. It is obvious that with 94 United States district courts, with 330 district judges, each having its own views as to what constitutes an illegal search, there never will be achieved any degree of uniformity in the Federal law until the Government is granted the right to appeal. Even judges within the same district are not in agreement as to what constitutes an unreasonable search. Where a search will be approved by one, it will be suppressed by another. H.Rep. No. 1478, 85th Cong., 2d Sess. 15 (April 28, 1958).

Second, the amendment was meant to relieve the government of the very substantial burden it faced when a defendant's motion to suppress evidence was granted. The government's dilemma was two-fold. In each individual case the government had two unappealing choices when evidence was suppressed. It could proceed to trial without the evidence, but if the defendant were acquitted the case would be over and no appeal could be taken. Alternately, the government could dismiss the indictment. "Therefore, in many instances the granting of such a motion (to suppress) is, in effect, a final order bringing the prosecution to an end, for the Government is unable to proceed without the suppressed evidence. In such cases, if the Government does proceed, it must do so under severe handicaps and limitations." H.Rep. No. 603 supra, at 2-3. A similar dilemma faced the government on a broader policy level. When a district court disapproved a specific evidence gathering technique by granting a suppression motion, the government, without the benefit of appellate review, had to either abandon a potentially permissible investigative practice or continue the practice and face the prospect of future suppressions by the district court. See Remarks of Senator Allott, 114 Cong.Rec. at 14788.

It is also clear that Congress intended this amendment to be construed liberally. After the provision was first enacted, some courts construed it narrowly. E. g., United States v. Greely, 134 U.S.App.D.C. 196, 413 F.2d 1103 (1969). Congress was aware of these cases and when amending § 3731 in 1971 a new paragraph (d) was added. It states that "the provisions of this section shall be liberally construed to effectuate its purposes." P.L. 91-644, 84 Stat. 1890; S.Rep. No. 91-1296, 91st Cong., 2d Sess. 18; see United States v. Calandra, 455 F.2d 750, 752 (6th Cir. 1972).

Based on the legislative history discussed above, we are of opinion the district court's refusal to grant a continuance in the case at bar constituted an abuse of discretion. In effect, the district judge's ruling places the government in the same dilemma it faced prior to the 1968 amendment of § 3731. The government either must go to trial without evidence which may be crucial to its case or it must dismiss the indictment. It the government goes to trial without the evidence and the defendant is acquitted, then an appellate decision may not be obtained since the defendant is constitutionally protected from another trial. We think the intended course in the ordinary case of this type is to grant a continuance pending appeal. Otherwise, the government is not allowed the benefit of appellate review which Congress clearly intended when it amended ...