United States v. Hayes

• Citation: 385 F.2d 375
• Decision Date: 02 November 1967
• Docket Number: No. 11032.,11032.
• Parties: UNITED STATES of America, Appellee, v. Maynard Francis HAYES, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

385 F.2d 375 (1967)

UNITED STATES of America, Appellee, v. Maynard Francis HAYES, Appellant.

No. 11032.

United States Court of Appeals Fourth Circuit.

Argued October 2, 1967.

Decided November 2, 1967.

Kenneth Lasson, Baltimore, Md. (Court-appointed counsel), Robert G. Fisher and Nelson B. Lasson, Baltimore, Md., on the brief, for appellant.

Alan I. Baron, Asst. U. S. Atty. (Stephen H. Sachs, U. S. Atty., on the brief), for appellee.

Before HAYNSWORTH, Chief Judge, SOBELOFF and BUTZNER, Circuit Judges.

SOBELOFF, Circuit Judge:

Maynard Francis Hayes appeals his conviction on four counts for transporting falsely made checks in interstate commerce in violation of 18 U.S.C.A. § 2314. His sole contention is that certain incriminating statements elicited from him and used against him at trial were obtained in contravention of his constitutional rights as enunciated in the Supreme Court's recent Miranda decision.¹ After careful consideration of the circumstances in this case, we affirm the conviction.

Acting on an outstanding federal warrant, four F.B.I. agents arrested Hayes in Atlantic City, New Jersey at about 1:45 p. m. on March 7, 1966. After transporting him to the local police station, the agents began their interrogation by identifying themselves and warning Hayes in a deliberate, conversational tone that he was not required to make any statements, that any statements he did make could be used against him in court, that he could have the services of a lawyer before making any statements, and that if he could not afford one, a lawyer would be retained for him. This the appellant does not dispute. He keys his appeal to the fact that following these warnings, he was not asked whether he understood them or whether he desired counsel. Nor did he volunteer such information. He asserts that as a matter of law in the absence of an express statement he could not have made an intelligent, knowledgeable and voluntary waiver of his Fifth and Sixth Amendment rights.

Following the warnings and before any questioning began, Hayes requested and was given permission to make a telephone call. The record is devoid of any information about the call; it is therefore unknown whom he called or what he discussed. Upon his return from the phone, he was asked leading questions and he responded incriminatingly. He did not volunteer any statements, nor did he make a confession. After approximately thirty minutes of questioning, Hayes declared that he would provide no additional information and demanded consultation with an attorney before signing anything. At this point, all interrogation ceased.

Appellant is correct in his position that a heavy burden rests upon the government to prove that a person in custody "knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Miranda v. State of Arizona, supra, 384 U.S. at 475, 86 S.Ct. at 1628. However, he is inaccurate when he contends that federal courts apply a talismanic approach in determining whether this burden has been satisfied. Just as the mere signing of a boilerplate statement to the effect that a defendant is knowingly waiving his rights will not discharge the government's burden, so the mere absence of such a statement will not preclude as a matter of law the possibility of an effective waiver.

In reiterating the strong presumption against waiver and the high standards of proof needed to overcome this presumption, the Court in Miranda relied upon Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), in which the Court unequivocally stated:

"The determination of whether here has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused."

Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023. Similarly, in a post-Miranda decision, the Fifth Circuit observed:

"* * * the cases in which it is clear that the warnings have been given must be considered on their own facts in order to determine the question of waiver. The courts must do this on an ad hoc basis, since no per se rule has thus far been adopted dealing with this problem."

Narro v. United States, 5 Cir., 370 F.2d 329-330 (1966).

Thus, we cannot accept appellant's suggestion that because he did not make a statement — written or oral — that he fully understood and voluntarily waived his rights after admittedly receiving the appropriate warnings, his subsequent answers were automatically rendered inadmissible. Of course, the attendant facts must show clearly and convincingly that he did relinquish his constitutional rights knowingly, intelligently and voluntarily, but a statement by the defendant to that effect is not an...