United States v. Britt, 72-1505 Summary Calendar.
Decision Date | 15 June 1972 |
Docket Number | No. 72-1505 Summary Calendar.,72-1505 Summary Calendar. |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Allen BRITT, Defendant-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
Harold E. Regan, Tallahassee, Fla. (Court-appointed), for defendant-appellant.
William H. Stafford, Jr., U.S. Atty., Pensacola, Fla., Stewart J. Carrouth, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.
Before BELL, DYER and CLARK, Circuit Judges.
This direct criminal appeal arises from a conviction for possessing a 16-gauge sawed-off shotgun in violation of 26 U.S.C.A. § 5861. Appellant contends that the court erred in concluding that the United States carried its burden of demonstrating that his in-custody inculpatory statement was voluntary and was obtained in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Under the Supreme Court's most recent opinion on this subject, Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) such a decision is to be resolved on the basis of a preponderance of the evidence rather than under the standard of proof beyond a reasonable doubt. In announcing its resolution of this issue, the District Court stated:
The second paragraph of the court's announcement makes it explicit that a forbidden consideration—truth—entered the Judge's decision. See Lego v. Twomey, supra, n. 12, 404 U.S. at 484, 92 S.Ct. at 624. Therefore, at a minimum, a new hearing on voluntariness must be conducted at which consideration is excluded.
On the present appeal, appellant further contends that he was entitled to an attorney's advice on whether he should have waived his Miranda defined rights. Acceptance of this contention would effectively negate the waiver procedures which underpin the Supreme Court's codification of these police conduct rules, and we reject this contention outright.
The case is remanded to the district court with directions to reassess the issue of voluntariness of appellant's statement...
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United States v. Seiffert
...employed in deciding the issue of voluntariness of a proffered confession is that of a preponderance of the evidence. United States v. Britt, 460 F.2d 1023 (5th Cir. 1972); United States v. Watson, 469 F.2d 362 (5th Cir. 1972); United States v. Cluchette, 465 F.2d 749 (9th Cir. 1972); Unite......