U.S. v. Rose, No. 76-2953

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before MERRILL, WRIGHT and ANDERSON; EUGENE A. WRIGHT
• Citation: 570 F.2d 1358
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence ROSE, Defendant-Appellant.
• Docket Number: No. 76-2953
• Decision Date: 28 February 1978

Page 1358

570 F.2d 1358 UNITED STATES of America, Plaintiff-Appellee,
v.
Lawrence ROSE, Defendant-Appellant. No. 76-2953. United States Court of Appeals,
Ninth Circuit. Feb. 28, 1978.

Page 1359

Susan B. Jordan (argued), San Francisco, Cal., for defendant-appellant.

Peter Mair, Asst. U. S. Atty. (argued), Seattle, Wash., for plaintiff-appellee.

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

Before MERRILL, WRIGHT and ANDERSON, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Appellant was convicted on one count of violating 18 U.S.C. § 542 (Count I) and two counts of violating 18 U.S.C. § 1001 (Counts II and III). His prison sentences were suspended, he was placed on probation, and he was fined $5,000, $10,000 and $10,000 on the respective counts.

Page 1360

The issues on appeal are:

(1) whether appellant waived his right to counsel, thus justifying the court's denial of his motion to suppress in-custody statements;

(2) whether customs officials were required to have given Miranda warnings before questioning appellant at the border;

(3) whether physical evidence seized at the airport should have been suppressed;

(4) whether a single false statement can justify separate convictions under §§ 542 and 1001 respectively; and

(5) whether the false statement upon which Count III is grounded was material.

FACTS:

Appellant was in transit from Germany to the United States when he submitted to a routine U. S. Customs inspection in Vancouver, British Columbia. Appellant's false statement that he had only two cameras to declare is the basis of the offenses in Counts I and II.

Suspecting Rose's suitcases had false bottoms, the customs officer asked appellant to take them to the customs office, purportedly to pay duty on the cameras. Appellant placed the suitcases on a rack and left the airport.

A Canadian officer then searched them and found that the false bottoms contained a substance later determined to be ergatomine tartrate, a dutiable item but not a controlled substance.

Appellant subsequently arrived at the border at Blaine in a rented automobile. Appellant's false responses to a routine series of questions by the border agent gave rise to the charge in Count III. Upon learning that appellant was the suspect who had disappeared from the Vancouver airport, the agent took him into custody.

When agents of the Drug Enforcement Agency (DEA) arrived, appellant was given Miranda warnings. He responded orally that he understood and waived his rights. When the DEA agents suggested that he cooperate with them and complete delivery of the drug, he asked to speak with an attorney friend. The agents suggested that it would be wiser to call another attorney who did not know any of his co-conspirators. After about twenty minutes of thought, alone, appellant decided to cooperate with the agents without calling his attorney friend. On the following day, appellant was questioned at the DEA office in Seattle, and again waived his Miranda rights. Yet again, he waived his right to counsel in an appearance before a magistrate, at which he was released on his own recognizance. Appellant claims that he requested an attorney after the hearing before the magistrate, and that the request was not honored.

DEA agents then accompanied appellant to San Francisco, where they stayed together in a hotel for two days. Appellant twice mentioned his attorney friend. On the first occasion, the agents said that they could not find her listed in the telephone directory. On the second occasion, appellant was despondent and sobbing and the agents said that he was free to call his attorney, but that it would be better if he first regained his composure. He did not renew his request for counsel after he calmed down.

Appellant also consented to a search of his home and a tap on his phone. He ceased cooperating with the DEA agents only when he left the hotel to stay in his own home.

DISCUSSION:

This case presents several sequences of appellant's waiver of his right to counsel, followed by his expressed doubts and alleged revocations. Appellant argues that revocations of his waivers were ignored, and that his repeated requests for the assistance of a named attorney were not honored.

Page 1361

We recently decided, in United States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir. January 30, 1978) (en banc), that the Supreme Court has not mandated a per se rule that would eliminate any possibility of a waiver of the right to counsel once the suspect has asked for an attorney. See Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232 (1977); Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 40 L.Ed.2d 313 (1975). To rule out the possibility that a suspect, having initially asserted his right to counsel, might voluntarily and intelligently waive that right, "would serve only to handcuff our law enforcement officers in the performance of their duties and to imprison the suspect in his alleged constitutional privileges." United States v. Rodriguez-Gastelum, supra at 488.

In the hearing on the motion to suppress, the district judge was in a better position than are we to judge the credibility of the witnesses. We believe his findings of fact support a conclusion that appellant waived his right to counsel and, after considered reflection, repeatedly withdrew his revocations of that waiver, or failed to effectuate the revocation.

Of particular interest is the fact that appellant initially agreed to waive his rights and to cooperate with the government agents. In such a situation, it is not surprising that a suspect will later have doubts about his complicity. We should not require that such doubts automatically bring to a halt all such cooperative investigatory endeavors.

The agents acted properly. When appellant asked to see his attorney friend, they simply advised him that, because of her involvement with some co-conspirators, he might prefer to talk to another attorney if he were interested in continuing the co-operative venture with the DEA agents. Likewise, when he broke down in his hotel room, they advised that he was free to call his attorney friend, but that it might be better to compose himself first. That sort of advice did not amount to undue pressure. It was intended only to contribute to his fair evaluation of his situation and to aid in his decision. We conclude, under the standards of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), that appellant repeatedly waived his right to counsel, and consequently that it was not error to admit his in-custody statements.

The second issue involves whether the customs agent who questioned appellant at the border should first have advised appellant of his Miranda rights. Although the agent on duty at Blaine had been alerted by the DEA, he stated that his questioning was routine and that he did not realize appellant was the one about whom the DEA had issued an alert until he saw the name on his student identification card.

Appellant argues that because the notes of a supervisor indicated that the agent recognized appellant by the description given by the DEA and because the agent recorded appellant's arrival at a rather exact time, he was detained for custodial purposes. The district judge was in a better position than are we to evaluate the agent's credibility. Border agents receive a variety of alerts nearly every hour and they process hundreds of vehicles and persons in relatively...