U.S. v. Scott

• Decision Date: 20 February 1979
• Docket Number: No. 77-1875,77-1875
• Parties: 4 Fed. R. Evid. Serv. 230 UNITED STATES of America, Plaintiff-Appellee, v. Alfred David SCOTT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1139

592 F.2d 1139

4 Fed. R. Evid. Serv. 230

UNITED STATES of America, Plaintiff-Appellee, v. Alfred David SCOTT, Defendant-Appellant.

No. 77-1875.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Aug. 9, 1978.

Decided Feb. 20, 1979.

Jerome F. Statkus, of Carmichael & Statkus, Cheyenne, Wyo., for defendant-appellant.

Sharon A. Lyman, Asst. U. S. Atty., Cheyenne, Wyo. (Charles E. Graves, U. S. Atty., Cheyenne, Wyo., with her on the brief), for plaintiff-appellee.

Before SETH, Chief Judge, and DOYLE and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

This is an appeal from a conviction of Alfred David Scott by jury on a charge that he "did embezzle, steal, take and carry away from a motor truck" chattels which were a part of an interstate shipment, in violation of 18 U.S.C. § 659.

The issues on appeal are:

(1) Must the government affirmatively demonstrate that a defendant's prior statement was voluntarily made, before it can be used in cross-examining the defendant when he takes the stand (2) Was there reversible error in the government's cross-examination of defendant about his prior convictions; and

(3) Was there prejudicial error because the jury was instructed on "stealing" as well as embezzlement.

We recite only such of the facts as are relevant to the issues involved on the appeal. The evidence for the prosecution was that Scott was employed as an independent trucker to haul a load of potatoes from Bakersfield, California, to Decatur, Michigan. The shipper and owner was Guimarra Farms, which produced the potatoes. Scott was hired by a broker, Gotz, who arranged the load and advanced Scott $500 traveling expenses and paid for approximately $1,100 of truck repairs after the trailer had been loaded with potatoes. Scott was to deliver the goods to the purchaser in Michigan, who was to pay $2,595 for the potatoes, plus shipping charges. En route the entire load was sold by Scott to a store in Rock Springs, Wyoming, for $1,500. The store manager was told that Scott was the owner and was selling the potatoes since they were in danger of spoiling because of a refrigeration breakdown and motor trouble with the truck. Scott cashed the $1,500 check made payable to him, abandoned the truck, never accounted for the proceeds, and was arrested sometime later after he had taken a job in Texas.

Scott's testimony was that he thought the potatoes were owned by Gotz, the broker; that he paid $2,200 to Gotz to reimburse him for the repairs made to the truck and to purchase one-half interest in the potatoes. He said that he sold the potatoes, after receiving permission from the broker, to prevent spoilage because the truck's refrigeration unit was malfunctioning. Scott admitted cashing the check received from the Wyoming food center and retaining part of the proceeds, but claimed that he turned over a portion of the $1,500 to a law officer in Kansas to be returned to the Wyoming store when he found out there was concern over his actions.

I

After Scott was arrested and in custody FBI agents questioned him about the events surrounding the sale of the potatoes. The agents made a transcript of the conversation but Scott never signed the statement nor verified its accuracy. The defendant's statement was not used in the prosecution's case-in-chief, but after Scott took the stand the government cross-examination relied on portions of the prior statement to impugn Scott's credibility. It is contended that the government had the responsibility to show the prior statement was voluntary before it could use it for any purpose, relying on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Wheeler v. United States, 382 F.2d 998 (10th Cir. 1967). Miranda, of course, requires police to give positive warnings informing the accused of his or her constitutional rights prior to interrogation, and declares the prosecution must demonstrate that such warnings were given before the statement or confession may be used as evidence. Our decision in Wheeler dealt specifically with use of such a statement for impeachment purposes, and we declared that "it is reasonable to require the Government to meet the burden of showing that the statement was voluntarily made after the accused had been fully advised of all of his rights and had effectively waived them in accordance with the standards prescribed by Miranda." 382 F.2d at 1001. The Wheeler case supports the appellant's position, but in this aspect must no longer be regarded as controlling. This case is controlled by Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), which ruled that prior statements of a defendant made in custody may be used in cross-examination for impeachment purposes, even if they do not satisfy Miranda standards.

Appellant focuses on the language in Harris which sates that the evidence is usable "provided of course that the trustworthiness of the evidence satisfies legal standards." 401 U.S. at 224, 91 S.Ct. at 645. His argument is that this requires an affirmative showing, before use, that the statement was made voluntarily and, therefore, was trustworthy. We do not agree. In Harris there is no indication such a foundation was laid. The court merely says, "Petitioner makes no claim that the statements made to the police were coerced or involuntary." 401 U.S. at 224, 91 S.Ct. at 645; Oregon v. Hass, 420 U.S. 714, 722, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), which reaffirmed and extended Harris, made essentially the same statement concerning a prior statement of a defendant used for impeachment, that there was "no evidence or suggestion that Hass' statements . . . were involuntary or coerced." It then went on to say:

If, in a given case, the officer's conduct amounts to an abuse, that case, like those involving coercion or duress, may be taken care of when it arises measured by the traditional standards for evaluating voluntariness or trustworthiness."

420 U.S. at 723, 95 S.Ct. at 1221.

In the case at bar there is no evidence that the statement was coerced or that there were any violations of Miranda. The statement itself expressly recites that appropriate warnings were given before interrogation. Defense counsel was given the prior statement before trial. There was no pretrial motion to suppress, only the contention when the statement was utilized that the government had to affirmatively demonstrate that the statement was voluntary, and that defendant had told his counsel "he wasn't aware of what they were talking about to him when he made that statement."

This is not Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) or Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). If voluntariness is questioned, the Court has the constitutional duty to make a factual determination. If the Court finds by at least a preponderance of the evidence that the statement was voluntary it may be used. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). But in the absence of either an allegation or indication of coercion, duress or involuntariness we are not going to require the government, as a precondition to use of defendant's own statement to cross-examine him, to bring in the FBI agent who took the statement to testify affirmatively that there was...