U.S. v. Shears, 85-5012
| Decision Date | 23 May 1985 |
| Docket Number | No. 85-5012,85-5012 |
| Citation | 762 F.2d 397 |
| Parties | UNITED STATES of America, Appellant, v. Charles Wallace SHEARS, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Mark A. Berthiaume, Asst. U.S. Atty., Baltimore, Md. (J. Frederick Motz, U.S. Atty., Baltimore, Md., on brief), for appellant.
Paul R. Kramer, P.A., Baltimore, Md. (Stuart J. Snyder, Baltimore, Md., on brief), for appellee.
Before WINTER, Chief Judge, and RUSSELL and MURNAGHAN, Circuit Judges.
This appeal presents two issues: whether we have jurisdiction over the government's appeal of a suppression order, and if so, whether the district court erred in finding that certain statements made by the defendant were involuntary and therefore should be suppressed. The suppression order was entered before defendant's initial trial began. The initial trial was terminated by the grant of defendant's motion for mistrial. The government's notice of appeal was filed after the mistrial was granted and before the jeopardy of the second trial had attached.
We hold that we do have jurisdiction and that the district court's order must be reversed.
Defendant Charles W. Shears was arrested on August 14, 1984 at the Baltimore-Washington International Airport after picking up a parcel of what was later determined to be cocaine. He was advised of his Miranda rights, asked about disposition of the truck he had driven to the airport, and transported by DEA agents Coront and Crawford to the DEA's Baltimore office for processing. Defendant was then taken to the courthouse for his initial appearance before a magistrate, who set his bail at $10,000 cash or corporate surety. While in the marshal's lockup in the courthouse, defendant asked to use the telephone. Agent Coront allowed defendant to make a call, but he suggested that if defendant wished to cooperate, it would be better if no one knew of his arrest. Defendant testified that Coront told him that he would not need a bondsman, and that Coront had some people who wanted to talk to defendant. Defendant remained in custody over the night of August 14.
On August 15, defendant was taken back to the courthouse for the purpose of posting bond. DEA Agent Boronyak and Postal Inspector Reilly met him there, and defendant subsequently made oral and written statements concerning his role in the conspiracy. The agents and defendant gave sharply differing versions of the conversations that precipitated those confessions, but they agreed that after the statements were given the agents sought the intervention of the Assistant U.S. Attorney, who obtained defendant's release on his own recognizance.
Defendant was indicted on August 22, 1984 for various cocaine possession and distribution offenses, and on September 20 he filed a motion to suppress his August 15 statements. The district court scheduled trial for December 3, 1984 and conducted an evidentiary hearing on the suppression motion that morning. At the conclusion of that hearing the district court ordered that defendant's statements be suppressed.
On the afternoon of December 3, 1984, a jury was chosen and sworn but then dismissed for the evening, with trial scheduled to begin the next morning. Later that night, an undercover narcotics officer was killed in Baltimore and one of the DEA agents expected to testify at defendant's trial was wounded. On the morning of December 4 the government moved for a one-day continuance and defendant moved to sequester the jury. After discussion of those motions, defendant moved for a mistrial, specifically waiving any double jeopardy claim on retrial. The district court granted the motion for a mistrial and rescheduled trial for February 20, 1985. On December 11, 1984, the government noted an appeal from the district court's suppression ruling. The district court subsequently postponed trial pending the outcome of this appeal.
Defendant contends that we lack jurisdiction of the government's appeal because jeopardy had attached before the appeal was noted. Defendant is correct that jeopardy attaches when the jury is empaneled and sworn, but that fact does not lead to the conclusion that the instant appeal is improper.
The relevant part 1 of 18 U.S.C. Sec. 3731 provides An appeal by the United States shall lie to a court of appeals from a decision or order of a district courts [sic] suppressing or excluding evidence ..., not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information....
Defendant argues that the foregoing provision should be read to forbid appeals noted "after the defendant has been put in jeopardy." The statute is not a model of clarity, but we think that the only reasonable interpretation of the above language is that the phrase "not made after the defendant has been put in jeopardy" refers to the phrase "a decision or order of a district court," not to "[a]n appeal by the United States." Moreover, the very next paragraph of this section grants the government thirty days in which to appeal, which would be anomalous if instead the appeal had to be filed before jeopardy attached, although we recognize that if a defendant was acquitted before the government's appeal was decided, the first paragraph of the section would operate to moot the appeal since defendant could not be tried anew because of the double jeopardy clause. We believe, therefore, that since the order was entered before jeopardy attached, it is an appealable order under the statute.
Defendant's counsel admitted at oral argument that he had not found any case supporting the construction that he urges us to adopt, and other courts in similar situations have concluded that appellate jurisdiction does exist. See United States v. Layton, 720 F.2d 548, 553-54 (9 Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1423, 79 L.Ed.2d 748 (1984) (); United States v. Harshaw, 705 F.2d 317 (8 Cir.1983) (); United States v. Steed, 674 F.2d 284 (4 Cir.) (in banc), cert. denied, 459 U.S. 829, 103 S.Ct. 67, 74 L.Ed.2d 68 (1982) (); United States v. Margiotta, 662 F.2d 131 (2 Cir.1981) (same as Layton ).
Examination of the purposes of Sec. 3731 makes it even clearer that the statute permits appeal of this type of pretrial order. The Supreme Court has noted on more than one occasion that Congress' intent in enacting the current version of Sec. 3731 was "to remove all statutory barriers to a criminal appeal taken by the Federal Government." Arizona v. Manypenny, 451 U.S. 232, 243 n. 18, 101 S.Ct. 1657, 1665 n. 18, 68 L.Ed.2d 58 (1981) (citing United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1019, 43 L.Ed.2d (1975) ). Thus, the statute authorizes appeals by the government except when a retrial would be barred by the double jeopardy clause of the fifth amendment. United States v. Steed, 674 F.2d 284, 285 (4 Cir.) (in banc), cert. denied, 459 U.S. 829, 103 S.Ct. 67, 74 L.Ed.2d 68 (1982). Since the defendant himself moved for the mistrial in this case, the principles of double jeopardy do not bar his retrial. Moreover, in moving for a mistrial defendant specifically waived any double jeopardy claim that he might have on retrial. The waiver may not have explicitly referred to this appeal, but since this appeal is only barred if a retrial is also barred, the waiver necessarily eliminates the potential constitutional objection to this appeal. Defendant's argument that we lack jurisdiction over the instant appeal is therefore without merit.
Defendant's theory of his motion to suppress is that he was induced to confess by promises of lenient treatment and therefore his confession was involuntary. See, e.g., Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 203, 50 L.Ed.2d 194 (1976) (per curiam).
Agents Coront and Crawford, who participated in the arrest and transportation of defendant on August 14, Agent Boronyak and Inspector Reilly, the officers who took defendant's statements on August 15, and the defendant all testified at the pretrial suppression hearing. There was no disagreement about the fact that defendant's Miranda rights had been fully respected, but there was a sharp disagreement between defendant and the agents over whether Reilly and Boronyak had promised defendant certain favors in return for his cooperation and statements. The district court relied on the defendant's perceptions of the events (although it admitted that "it is not wholly the Defendant's state of mind which controls"), and from this perspective, it found that "there was an implied promise [as to reduced criminal charges or release on his own recognizance] made to the Defendant to induce him to execute the written statement." The district court chose not to resolve the credibility dispute between the government agents and defendant; instead, it relied on the events of August 14 for its finding of an implied promise:
I find as a fact that there had to have been some meaningful discussions between Coront, on the one hand, and the Defendant, on the other, which could have reasonably led him to the belief that he had in his hands a defendant who was willing to cooperate.
I find that, therefore, there was a promise which vitiates the voluntariness of the confession and I will exclude from proof the written statement which was generated as a result of the occurrences of that day.
I find further that on the facts I am persuaded that the discussion which was had between this defendant and the two Case Agents--I do not need to make a specific finding of...
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