U.S. v. Smith

• Decision Date: 30 October 1975
• Docket Number: No. 75--1038,75--1038
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Edward SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1017

525 F.2d 1017

UNITED STATES of America, Plaintiff-Appellee, v. Charles Edward SMITH, Defendant-Appellant.

No. 75--1038.

United States Court of Appeals, Tenth Circuit.

Argued Sept. 16, 1975.

Decided Oct. 30, 1975.

Lawrence E. Schauf, Asst. U.S. Atty. (E. Edward Johnson, U.S. Atty., on the brief), for plaintiff-appellee.

Daniel J. High, Asst. Federal Public Defender (Leonard D. Munker, Federal Public Defender, on the brief), for defendant-appellant.

Before HILL, SETH and DOYLE, Circuit Judges.

DOYLE, Circuit Judge.

This was a criminal prosecution in the district court in which the indictment charged the defendant with violation of the Dyer Act. The allegation was that on June 8, 1974, he unlawfully transported in interstate commerce from St. Paul, Minnesota to Wichita, Kansas, a stolen motor vehicle, a 1974 Mercury Capri bearing identification number VIN NAGAECND25155, knowing the same to have been stolen contrary to 18 U.S.C. § 2312.

A plea of not guilty was entered on October 23, 1974. The trial started on December 2, 1974. It was delayed so that the jury returned a verdict of guilty on December 10, 1974. A five-year sentence pursuant to the Indeterminate Sentencing Act followed.

On this appeal defendant contends (1) that the court erred in denying his motion for continuance and for the issuance of a subpoena duces tecum, and (2) that the court erred in admitting his oral statements regarding the offense with which he is charged, which statements it is said were made during plea bargaining efforts of the defendant.

The arrest occurred in Wichita, Kansas, on June 8, 1974. Appellant was driving the subject automobile. The police officer who made the arrest intended to question him in connection with a robbery which had occurred a short time before in Wichita. The officer had to pursue him for about a block before he succeeded in stopping the vehicle and this was accomplished only after a collision which wrecked the vehicle.

The controversy concerning the admissibility of the oral statements arises as a result of the defendant's statement at the time of the arrest in response to advice by the arresting officer as to Miranda rights that he did not wish to make a statement until he had consulted an attorney. Nevertheless, the officer continued to talk with the defendant, and the defendant responded with a fictitious name. Counsel for the accused did not at first object to receiving in evidence the giving of the name. He now contends that it was plain error for the court to receive it and for the officer to testify that a false name was given.

The June 10 and 11, 1974 statements were made only after the detective investigating gave a Miranda warning and secured a signed waiver from the defendant-appellant. The defendant then was in custody in Wichita on state robbery charges and was being held for Washington State on a federal bank robbery charge from the District of Washington.

On June 10, 1974, and also on June 11, defendant had requested an opportunity to speak with authorities. As indicated, he signed a waiver on both days. Initially on both days he said that he did not want to discuss the possible Dyer Act charge and the officer testified that he was not with him for the purpose of questioning him concerning this. On the June 11 occasion the officer had gone there with an FBI agent in connection with the pending bank robbery charge. The entire purpose of the interviews on each of the days was to give the defendant an opportunity to plea bargain. In the course of general conversation, defendant said that he would plead guilty to all of the pending offenses if he could be assured of going to a federal institution.

The inculpatory statement testified to by the detective was to the effect that the only other thing he was involved in was the car he took in St. Paul, Minnesota, and drove to Wichita and was apprehended in.

It is the government's position that the inculpatory admissions having to do with the stolen car in Minnesota was wholly voluntary and given with full knowledge of defendant's rights. The ultimate question in regard to the giving of the fictitious name is whether the Miranda doctrine precludes the introduction of an admission given by the defendant after he has stated his unwillingness to talk until such time as he has consulted a lawyer. This latter statement was made at the time of the defendant's arrest on June 8. He asked to see the officer on June 10 and on June 11 for the purpose of discussing a plea of guilty.

I.

Our initial inquiry is whether after an accused who has refused to make a statement, saying that he wishes to talk to a lawyer, can immediately thereafter effectively waive his rights. Ordinarily at least the waiver would not be effective, for to allow the police officers to continue to talk to the man could effectively nullify the doctrine. To do so would be contrary to the spirit of Miranda, which contemplates that once a defendant refuses to be questioned further or demands a lawyer, the questioning is to cease. Our court has recognized that continued questioning is invalid. United States v. King, 485 F.2d 353 (10th Cir. 1973); United States v. Arnold, 425 F.2d 204 (10th Cir. 1970); United States v. Nolan, 416 F.2d 588 (10th Cir. 1969).

In this case, however, we perceive no substantial error as a result of eliciting the name of the defendant even though it proved to be a false name and this fact was shown, because under the circumstances this does not appear to constitute prejudice. Nevertheless, on retrial the fact of the giving of the false name should not be repeated.

II.

The question in the case which we regard as serious is the alleged error in receiving the June 10 and June 11 statements given in the course of plea bargaining. Although the accused had been arrested on June 8 and had demanded an attorney, one had not been assigned to him as of June 10 and June 11. On these dates, it was recalled, the accused, who was not represented, requested an opportunity also to talk to the officers for the purpose of plea bargaining. The government argues that the statement made by the defendant during these discussions in which he acknowledged the theft of the vehicle in St. Paul, Minnesota, was admissible, notwithstanding that it was given in the course of an effort on his part to strike a deal, so to speak, whereby he could enter a plea of guilty and receive dismissal of certain state charges. ¹ The argument is that he was warned of his rights and chose to waive them.

The testimony which is set forth below eliminates any possible doubt as to the purpose of the accused to work out an arrangement, whereby he would serve federal time and thus avoid the state robbery charge. He expressed a willingness to plead to the federal charge in exchange. Officer Puckett recognized that this was the case because on June 11 he brought an FBI agent with him. We are aware that the defendant on each of these days executed a Miranda waiver, but we are not persuaded that this effectively negates the legal consequence of the plea bargaining. As far as the accused was concerned, he was not making a confession, he was seeking to reach an agreement with the authorities and the discussions were directed to that end.

The first question is whether discussions had during the course of plea bargaining are generally admissible as part of the government's case in chief. The answer is no, they are not, at least where the plea bargaining is by a lawyer. The proceedings during the plea bargaining are generally recognized to be privileged and inadmissible. See United States v. Ross, 493 F.2d 771, 775 (5th Cir. 1974), wherein it was said: '(I)t is immediately apparent that no defendant or his counsel will pursue (plea bargaining) if the remarks uttered during the course of it are to be admitted in evidence as proof of guilt.' If the proceedings during plea bargaining could be introduced as inculpatory statements against the accused, there would not be very much plea bargaining. So, as a matter of policy it is essential that it be considered as privileged. Indeed such lawyers' discussions have always been considered privileged. See McCormick Evidence § 274 (1972 ed.). See also Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927), barring use of a withdrawn plea of guilty against the defendant. ²

The American Bar Association Standards Relating to Pleas of Guilty recommends that plea discussions and plea agreements are not to be admissible either for or against the defendant in any proceeding. 1968 Approved Draft § 3.4 states:

Unless the defendant subsequently enters a plea of guilty or nolo contendere which is not withdrawn, the fact that the defendant or his counsel and the prosecuting attorney engaged in plea discussions or made a plea agreement should not be received in evidence against or in favor of the defendant in any criminal or civil action or administrative proceedings.

There are state decisions which recognize that plea discussions are not admissible into evidence. See State v. Byrd, 203 Kan. 45, 453 P.2d 22 (1969) (dictum). See also People v. Hamilton, 60 Cal.2d 105, 32 Cal.Rptr. 4, 383 P.2d 412 (1963).

Also, the Second Circuit in the course of interpreting New York law has stated that discussions during plea bargaining are not admissible. See United States ex rel. Burke v. Mancusi, 425 F.2d 1061, 1062 n.2, 1063 (2d Cir. 1970) (habeas corpus proceeding).

The Supreme Court in Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) recognized the efficacy of plea bargaining as a necessary part of the criminal procedure.

We do not argue either in favor or against plea bargaining in considering the present question except to state that if it is to be carried on, the discussions cannot be admissible in evidence, for to permit this would effectively thwart the effort.

The Court of Appeals for the District of Columbia in United...