United States v. Booth

• Decision Date: 21 August 1975
• Docket Number: Crim. No. 75-332.
• Citation: 399 F. Supp. 975
• Court: U.S. District Court — District of South Carolina
• Parties: UNITED STATES of America, v. Paul M. BOOTH, Jr.

399 F. Supp. 975

UNITED STATES of America, v. Paul M. BOOTH, Jr.

Crim. No. 75-332.

United States District Court, D. South Carolina, Columbia Division.

August 21, 1975.

Mark W. Buyck, Jr., U. S. Atty., D. S. C.; Marvin L. Smith, Asst. U. S. Atty., D. S. C., and Joel Collins, Asst. U. S. Atty., D. S. C., Columbia, S. C., for United States.

Terrell L. Glenn, and Charles Porter, of Glenn, Porter & Sullivan, Columbia, S. C., for Paul M. Booth, Jr.

ORDER

HEMPHILL, District Judge.

Statement of Facts

For several months in late 1972 through early 1973, agents of the Office of The Inspector General, United States Department of Agriculture, investigated the allegations of irregularities in the Sumter County Office of the Farmer's Home Administration. The defendant was the County Supervisor in charge of that office during the period in question. In February 1973, Special Agent Gerald A. Choo, while investigating this Sumter County Office, determined that a black loose leaf binder, which was ordered maintained by the defendant herein in lieu of certain official records, and which contained material pertinent to his investigation, was missing. Upon making inquiry, he learned that Mr. Booth had thrown the binder away after President Nixon had suspended interest credit loans. On March 13, 1973, Mr. Choo traveled to Mr. Booth's offices in Sumter and obtained a signed, sworn statement from defendant in which he stated that he had thrown the binder away.

On February 27, 1975, Mr. Choo and Mr. Joel Collins, Assistant United States Attorney for the District of South Carolina, visited Mr. Booth in Fairfield in preparation for the trial of Edgar E. Owens, the Assistant County Supervisor of the Sumter County Office of the Farmer's Home Administration, and Larry G. Roof, a Sumter County building contractor. At the beginning of the meeting, Mr. Collins showed the defendant a draft of an indictment which had been prepared against him; in addition a copy of Title 18, United States Code § 2071(b) was shown to Booth at that time. The defendant contends, and Mr. Collins denies, that Collins stated that if the defendant's testimony was favorable, i. e., if Booth gave the "proper answers," then the government would reconsider going forward with the indictment. Booth and Collins agree that the word "immunity" was never used and that Collins consistently told the defendant to tell the truth. The defendant then conferred with Mr. T. K. McDonald, Jr., Esq., of the Fairfield County, South Carolina, bar, and asked Mr. Collins to relate the situation then existing to Mr. McDonald. Mr. Collins did so, stating that his primary purpose in being present was to interview Mr. Booth relative to his possible testimony in the Roof-Owens case. Collins also emphasized to McDonald that he (McDonald) "did not know the whole story" behind the preparation of the draft indictment of Mr. Booth. During the questioning which followed, Mr. Collins did not inquire into those facts supportive of the draft indictment; however, he did question defendant on the contents of the March 13, 1973, statement given to Mr. Choo.

In April 1975, the defendant was subpoenaed by the government and testified at the trial of United States v. Larry Dixon Roof and Edgar E. Owens, Criminal No. 75-148 (D.S.C.1975), which was being conducted by the Honorable Charles E. Simons, Jr. Roof and Owens were charged with bribery, conspiracy and using false documents in connection with housing loan applications. At that time defendant Booth again admitted, in response to a question propounded by the Assistant United States Attorney, that he had destroyed the binder.

On June 4, 1975, Mr. Booth was indicted for destruction of "a certain loose leaf binder book containing information relating to the receipt and processing of Government Housing Loan applications filed and kept in . . . a public office of the United States, which book was then in the custody of the defendant, in violation of . . ." 18 U.S.C. § 2071(b). On June 19, 1975, defendant entered a "not guilty" plea.

On July 8, 1975, defendant's attorney moved for disqualification of Judge Simons under the provisions of 28 U.S.C. § 455 (December 5, 1974), citing personal knowledge by that jurist of disputed evidentiary facts as to basis of the motion. The hearing was held on July 17, 1975, at which time Judge Simons disqualified himself. On July 24, 1975, the case was assigned to this court for ultimate disposition.

The defendant has moved the court to suppress Booth's statement of March 13, 1973, to Special Agent Choo on the grounds that such warnings as were given at that time were not adequate by the standard enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In addition, he moves for dismissal of the indictment on the grounds that his Fifth Amendment rights had been violated when he, as a "virtual or putative defendant," had been compelled to testify under subpoena in the Roof-Owens trial. The government opposes both motions. This court heard argument and testimony relevant to these motions (and others disposed of at the time)¹ on August 8, 1975.

Conclusions of Law

Defendant's motions relied extensively on the landmark decision in Miranda v. Arizona, supra, where the Court stated that:

The constitutional issue . . . considered herein is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way.

384 U.S. at 445, 86 S.Ct. at 1612.

Such language has led defendant to argue that Miranda extends "beyond the station house interrogation" and is now applicable to situations in which the investigation has "focused" on the individual being interrogated. He contends that "focus of the interrogation" is synonymous with "custodial interrogation."

In explaining the rationale underlying Miranda, Chief Justice Warren, speaking for the majority, stated that the:

Fifth Amendment privilege . . . serves to protect persons in all settings in which their freedom of action is curtailed in any significant way . .. In-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist . . ..

Id. at 467, 86 S.Ct. at 1624.

It is this "potentiality for compulsion," Id. at 457, 86 S.Ct. 1602, which constitutes the foundation upon which the rest of the opinion is built. See also Id. at 465, 86 S.Ct. 1602. It is for this reason that the Court held that:

Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.

Id. at 478, 86 S.Ct. at 1630.

It is therefore apparent that the so-called "Miranda warnings" should have been given in this case if, but only if, the defendant was interrogated while deprived of his freedom in such a manner as would reasonably exert inherently compelling pressures on him.

The leading "focus of the investigation" case was Orozoco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). There the defendant made a statement to four police officers who had entered his home at 4 o'clock a. m. and questioned him in his bedroom. No Miranda warnings were given. The statement was held to be inadmissible at trial because the investigation had "focused" on the defendant. The case, however, is easily distinguishable from that at bar because, before beginning their questioning, the officers informed the defendant that he was "under arrest;" i. e., that he was "in-custody." The Court noted that Miranda "iterated and reiterated the absolute necessity for officers interrogating people `in custody' to give the described warnings." Id. at 326, 89 S.Ct. at 1097. The Court based its decision, not only the "focus" consideration, but upon the need for warnings whenever the person being interrogated was "deprived of his freedom of action in any significant way." Id. at 327, 89 S.Ct. at 1097 (emphasis in original).

Defendant relies upon three cases from the United States Court of Appeals for the Fifth Circuit as standing for the proposition that, if the investigation had "focused" upon the individual interrogated, that individual was entitled to Miranda warnings. In Bendelow v. United States, 418 F.2d 42 (5th Cir. 1969), defendant was convicted of interstate transportation of stolen automobiles. Booth notes that the court held that when an officer making a driver's license check on Bendelow discovered alterations in his driver's license ". . the investigation focused upon Bendelow and a Miranda warning was in order before any statement by Bendelow could be admissible." Id. at 47. Booth apparently overlooked the next sentence, which stated, "prior to that time no warning was required because there was no `in-custody interrogation' as prohibited by Miranda and its progeny . . ." Id.

In Windsor v. United States, 389 F.2d 530 (5th Cir. 1968), the defendant, after having been informed that he was not under arrest, was questioned by the police in his motel room. It was later discovered that the questioning officers had previously learned from Windsor's accomplice all the facts of the illegal activity in question. The court stated that:

The focus of the investigation was clearly and unmistakably upon Windsor while he was being interrogated. In effect he was already being detained and in custody or being deprived of his freedom in a significant way. As soon as he made his incriminating oral statement, Agent Hufford left the room, telephoned the United States Attorney and obtained authority to place him under arrest. Sharp had already given the agents sufficient evidence for them to conclude that Windsor was also involved in the interstate transportation of the stolen car. There was, therefore, probable cause to arrest him. The

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