United States v. Devall, 71-1252 Summary Calendar.

Decision Date09 June 1972
Docket NumberNo. 71-1252 Summary Calendar.,71-1252 Summary Calendar.
Citation462 F.2d 137
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James W. DEVALL, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

William L. Crull, New Orleans, La. (court appointed), for defendant-appellant.

Gerald J. Gallinghouse, U. S. Atty., Stephen L. Dunne, New Orleans, La., Mary Williams Cazalas, Michael H. Ellis, Asst. U. S. Attys., New Orleans, La., for the United States.

Before JOHN R. BROWN, Chief Judge, and INGRAHAM and RONEY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This direct appeal was taken from Appellant's conviction under 18 U.S.C.A. § 6411 for having been in possession of two United States Post Office money orders, with the knowledge that they were stolen and with the intention of converting them to his own use and gain.2 Appellant, in assigning numerous points of error,3 contends that the Trial Court erred (i) by admitting into evidence certain testimony concerning statements he made while in the custody of postal authorities and (ii) by imposing a sentence of two years imprisonment since the question of the value of the money orders he had in his possession—a question which under § 641 had no bearing on the issue of his guilt or innocence but was of prime importance on the issue of his punishment—was not submitted to the jury. We affirm.

The Crime

In New Orleans, Louisiana on the night of February 19, 1970, Appellant attempted to cash two bogus United States postal money orders, both of which had been stolen from the Albion, Oklahoma Post Office on September 29, 1968. The money orders were blank when stolen but when presented for cashing by the Appellant, each was made out in the amount of $100 and each was made payable to a Mr. James McDonald.4 Appellant was not charged with forging or passing forged Government instruments nor was there any evidence that linked him to the theft of the money orders from the Oklahoma post office. Rather, he was charged under § 641 for having been in possession of stolen United States Government property. Appellant's defense during trial consisted primarily of an attempt to refute that portion of the Government's evidence concerning his knowledge that the money orders had been stolen. He repeatedly contended that he had come into possession of the money orders in a crap game and could not therefore have had the requisite knowledge that they had been stolen. The jury, having been properly instructed on the requisite elements of the offense, obviously disbelieved this story and returned a verdict of guilty. The Trial Court, without having submitted the issue of the value of the money orders to the jury, sentenced Appellant to a term of two years imprisonment. This appeal followed.

Custodial Interrogation

Although Appellant did not raise any objection at trial to the introduction of evidence concerning statements he made to Postal Inspectors after his arrest, he here contends that the Trial Court erred by admitting this testimony into evidence. He first argues that he did not intelligently and knowingly waive his right to remain silent or have counsel present during questioning and second, that the two hour delay between his arrest and appearance before a committing magistrate violated Rule 5(a), F.R. Crim.P.5 and renders the evidence inadmissible.

We need not tarry over Appellant's argument that this minor delay in his arraignment before a magistrate tainted the statements which were introduced during trial. This delay, whether viewed in the light of 18 U.S.C.A. § 3501(c)6 or the totality of the circumstances surrounding the delay7 Lovelace v. United States, 5 Cir., 1966, 357 F.2d 306, can in no way provide a basis for a holding of inadmissibility.

We likewise reject Appellant's argument that he did not intelligently and knowingly waive his right to remain silent. His first contention, that he could not have given an intelligent and knowing waiver because he was intoxicated and had not slept the previous night—raised for the first time on appeal—finds no support in the record. Neither the Appellant during the course of his testimony, nor his counsel, in the form of an objection to the introduction of this evidence, raised this issue at trial. Nor is there any other evidence in the record which indicates that the Appellant did not have a "rational awareness" of surrounding circumstances when he made the statements. United States v. Kershner, 5 Cir., 1970, 432 F.2d 1066, 1069-1070.

In this regard, Appellant also argues that under Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; United States v. Phelps, 5 Cir., 1971, 443 F.2d 246; and United States v. Ramos, 5 Cir., 1971, 448 F.2d 398, his failure to sign a printed waiver of rights form when tendered to him by postal authorities8 after having been twice informed of his rights, and after having immediately beforehand expressly stated that he did desire to speak with the officers, should have triggered the automatic cessation of interrogation.9 Appellant contends that the statements made subsequent to this failure to sign the form should have, therefore, been excluded from evidence. We find it unnecessary to pass upon the merits of the Government's strenuously pressed argument that this or any other objection to the admission of the evidence was waived by Appellant's failure to raise timely objection during trial since we have concluded under the facts here presented, that the Trial Court did not err in admitting these statements into evidence.

"A refusal to sign a waiver may indicate nothing more than a reluctance to put pen to paper under the circumstances of custody. A detainee may still wish to discuss the matter with his detainers for any number of reasons, including a desire to exculpate or explain himself. Put another way, a detainee may make statements that are quite voluntary without signing a written waiver. A court must look to all the circumstances of the detention to ascertain whether or not the refusal to sign a waiver was tantamount to a refusal to discuss." United States v. McDaniel, 5 Cir., 1972, 463 F.2d 129, 135.

Viewing the circumstances surrounding Appellant's affirmative oral waiver, we are convinced that his failure to sign the waiver form when tendered to him does not in itself negate the overwhelming proof that his oral waiver was intelligently and knowingly given and that his statements were voluntarily given. Nor do we view his failure to sign the form as an "indication" that he desired to remain silent. Appellant was first asked to read the printed form and asked if he understood the meaning of the statements contained therein. He answered that he did. Officers then orally informed him of his rights by reading the printed form aloud to him. Most important, he was then asked if he wanted to talk with the questioning officers. He answered that he did. He was not questioned for an unreasonable period of time nor was he threatened or coerced in any manner. He willingly and voluntarily answered questions which were posed to him only after having been twice informed of his rights and after having affirmatively stated that he desired to speak with the officers. Under these circumstances, the failure to sign the waiver form merely presented another factor for the Trial Court to evaluate in examining the totality of the circumstances surrounding the making of the statements, bearing exclusively on the issue of the voluntariness of the statements.10 We find no error in the Trial Court's admission of the testimony concerning the statements into evidence.

The Punishment

Under 18 U.S.C.A. § 641 (see note 1, supra) the value of the subject stolen Government property involved is determinative on the issue of punishment in that upon this issue hangs the question of whether or not the offense is a felony or a misdemeanor.11 Although Appellant neither requested the submission of the value issue to the jury, nor raised any objection to the Court's charge below as required by Rule 30, F.R.Crim. P.,12 he here contends that the Trial Court erred by sentencing him to a term of two years imprisonment—a sentence which could only be imposed if the money orders had an aggregate value in excess of $100—without first having submitted the issue of value to the jury.

Appellant's argument at least begins upon sound ground since it is now well recognized that the question of value in a § 641 proceeding is within the province of the jury rather than that of the sentencing Judge. United States v. Kramer, 2 Cir., 1961, 289 F.2d 909.13 Indeed, this Court in Jalbert v. United States, 5 Cir., 1967, 375 F.2d 125, cert. denied, 1967, 389 U.S. 899, 88 S.Ct. 225, 19 L.Ed.2d 221, has approved the dual issue submission procedure whereby the jury in a § 641 proceeding is called upon to determine not only the guilt or innocence of the accused, but also whether or not the subject property has a value in excess of $100.14

But the sound ground soon shifts. For there was no objection to the charge or request that the value issue be submitted to the jury. To succeed Appellant must make it out to be plain error. That makes it quite a different thing from the contention that the failure of the Court to submit it constituted an impermissible directed verdict.15 It is equally fundamental that when the requirements of Rule 30 have been disregarded we are, under Rule 52(a), F.R.Crim.P., forced to disregard any error or defect which does not substantially prejudice the rights of the defendant. Cleaver v. United States, 10 Cir., 1957, 238 F.2d 766, 770. Although some cases hold that the failure to instruct on every element of the crime is per se plain substantial error under Rule 52, see Morris v. United States, 9 Cir., 1946, 156 F.2d 525, we are convinced that under the facts of this case, the mechanical application of this rule is unwarranted. See Olar v. United States, 9 Cir., 1968, 391 F.2d 773.

No matter what error or...

To continue reading

Request your trial
24 cases
  • United States v. Ryan, 72-2414.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 15, 1973
    ...motel room. 5 Compare United States v. Ramos, supra, with United States v. McDaniel, 463 F. 2d 129 (5th Cir., 1972); United States v. Devall, 462 F.2d 137 (5th Cir., 1972); United States v. Tafoya 459 F.2d 424 (10th Cir., 1972). McDaniel, Devall and Tafoya teach that the Ramos rule is not t......
  • Mohr v. State
    • United States
    • Mississippi Supreme Court
    • August 7, 1991
    ...denied, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1973); United States v. Sawyer, 504 F.2d 878 (5th Cir.1974); United States v. Devall, 462 F.2d 137 (5th Cir.1972); McDonald, 677 F.2d at 520. Mohr's request for a mental counselor was not a per se invocation of his Fifth Amendment rights......
  • U.S. v. Kroesser
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • May 11, 1984
    ...of value in a Sec. 641 proceeding is within the province of the jury rather than that of the sentencing Judge." United States v. Devall, 462 F.2d 137, 142 (5th Cir.1972). In the case before us the trial court did permit the jury to make a finding on the issue of value. However, its instruct......
  • U.S. v. Langston
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • June 26, 1990
    ...of value in a Sec. 641 proceeding is within the province of the jury rather than that of the sentencing Judge." United States v. Devall, 462 F.2d 137, 142 (5th Cir.1972), quoted in United States v. Kroesser, 731 F.2d 1509, 1517 (11th While the question of value is one for the jury, "the dis......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT