United States v. Nielsen

Decision Date16 April 1968
Docket NumberNo. 16176.,16176.
Citation392 F.2d 849
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Richard NIELSEN, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Richard B. Caifano, Jo-Anne F. Wolfson, Chicago, Ill., for appellant.

Edward V. Hanrahan, U. S. Atty., Mark W. Perrin, Special Asst. U. S. Atty., Chicago, Ill., for appellee; John Peter Lulinski, Gerald M. Werksman, Asst. U. S. Attys., of counsel.

Before SWYGERT, FAIRCHILD, and CUMMINGS, Circuit Judges.

SWYGERT, Circuit Judge.

Richard Nielsen was charged with aiding and abetting the transportation in interstate commerce of a stolen motor vehicle which he knew was stolen, in violation of 18 U.S.C. §§ 2, 2312. After a jury found the defendant guilty, he was sentenced to five years in prison.

During a two-day period beginning September 9, 1966, Federal Bureau of Investigation agents kept a garage, located in DuPage County, Illinois, under surveillance. This garage had been leased to the defendant who ostensibly operated an automobile repair and salvage business there. The agents observed a gold and black 1966 Chevelle (Chevrolet) automobile outside the garage when they began their surveillance. Soon thereafter the defendant drove the car into the garage, reappeared, and removed a set of license plates from the trunk of his own car. The next afternoon an agent saw the defendant drive the Chevelle from the garage with the license plates which he had removed from his own car the previous day. He followed the defendant but momentarily lost sight of the Chevelle in traffic. When the agent again observed the car, it was parked in a Westmont, Illinois restaurant parking lot several miles from the defendant's garage.

While the agent kept the car under observation, he noticed a man whom he recognized as Jarvis P. Suit and knew as an admitted car thief enter the car and drive away. The agent followed Suit into Hammond, Indiana where he stopped him. An examination of the Chevelle disclosed that although the vehicle identification tag matched the secondary identification number on the frame, the latter showed evidence of alteration. Subsequent investigation revealed that the Chevelle was in fact stolen,1 that the vehicle identification tag found on the car had the same serial number as that appearing on the title of a wrecked car, and that the secondary number had been impressed on the frame by means of stamps seized from the defendant's garage on the day of his arrest.

At approximately 1 a. m. on October 7, 1966, the defendant was arrested in his home in Lisle, Illinois. The arresting F.B.I. agent testified before the jury that he warned the defendant while still at his home of his rights to remain silent and to have the assistance of counsel (as required by the Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). The agent further testified that he again warned the defendant of these rights when they reached the F.B.I. office and that the defendant himself read a statement of these rights which were contained in a "waiver of rights" form.2 According to the agent, the defendant then said: "I am not going to sign this document. I have an attorney, * * * and I am not signing anything, including this form, until I have occasion to talk to Mr. Wolfson." The agent testified that he then offered to let the defendant call his attorney, but the defendant declined, saying, "it could wait until later on in the morning." The agent continued, "He said, however, that we could proceed with the questioning." Following this statement, the agent said that he asked the defendant five questions concerning his knowledge about J. P. Suit and the car. To all questions, the defendant gave negative answers.

During the trial, the Government argued that the defendant's denials in response to the F.B.I. agent's questions were false, and the district judge in his charge told the jury that they might consider whether the evidence of the defendant's denial indicated a consciousness of guilt on his part. The defendant did not testify in his own behalf at the trial.

Even though the record indicates that the F.B.I. agent warned the defendant of his rights as required by Miranda, the agent's testimony gives rise to the distinct probability that the defendant's constitutional rights not only were prejudiced by the agent's testimony during the trial but also were violated by the agent's conduct during the interrogation.

In Miranda, Chief Justice Warren wrote:

In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Cf. Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); * * * Miranda v. State of Arizona, supra at 468 N. 37, 86 S.Ct. at 1625.

Griffin v. State of California pertained to an instruction in a state criminal prosecution allowing the jury to draw unfavorable inferences from the defendant's failure to testify about matters within his own knowledge. The Court reversed, saying, "The Fifth Amendment * * * forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Griffin v. State of California, supra at 380 U.S. 615, 85 S.Ct. at 1233. Cf. United States v. Krol, 374 F.2d 776, 779 (7th Cir.), cert. denied, 389 U.S. 835, 88 S.Ct. 46, 19 L.Ed.2d 97 (1967).

Both in Miranda and Griffin the Supreme Court made it unmistakably clear that an accused's exercise of his fifth amendment right to remain silent ought not yield a "penalty * * * for exercising a constitutional privilege." Griffin v. State of California, supra 380 U.S. at 614, 85 S.Ct. at 1233. When a defendant's exercise of his constitutional right to remain silent during either interrogation or trial is the subject of testimony or comment, the possibility that the jury might draw prejudicial inferences therefrom is the penalty to which he is exposed. We believe that the same likelihood of prejudice inherent in the foregoing situation could also be present where there is testimony, as in this case, that a defendant initially refused to say anything but subsequently spoke.

To avoid the possibility of thus penalizing an accused for an exercise of his constitutional rights, we hold that whenever a defendant, by appropriate objection to proffered testimony concerning his statements made during custodial interrogation, contends that those statements were made in the absence of a knowing and intelligent waiver of his rights to remain silent and consult an attorney, the court must excuse the jury and conduct a voir dire hearing to resolve the issue. Cf. Jackson v. Denno, 378 U.S. 366, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). See, Tucker v. United States, 375 F.2d 363 (8th Cir. 1967); Evans v. United States, 375 F.2d 355 (8th Cir. 1967); Pinkerman v. United States, 374 F.2d 988 (4th Cir. 1967). A voir dire hearing would prevent the jury from drawing prejudicial inferences by reason of testimony that the defendant sought to exercise his constitutional rights. In addition, such a hearing would enable the defendant to testify on the issue of waiver without relinquishing his privilege to remain silent at the trial. Finally, this procedure enables the court to make a fully informed determination on the question of the admissibility of the defendant's custodial statements. Because the procedure followed in the instant case was not compatible with protecting the defendant in the exercise of his constitutional rights, prejudicial error occurred.

According to the testimony of the F.B.I. agent, the defendant, after being warned of his right to remain silent and the consequences of speaking, said he had a retained attorney and would not sign a waiver of rights form or "anything" until he talked to his attorney. At this point, the agent asked the defendant if he wanted to call his attorney. The defendant replied that he would wait to call until later in the morning but that "they" could continue questioning him. Resumption of questioning by the agent resulted in the defendant responding to five questions in the negative.

In Miranda, the Supreme Court indicated that the fact that a person was properly warned of his rights does not inevitably lead to the conclusion that his subsequent statements were obtained without violating those rights.

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. * * * If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant 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 473, 474, 475, 86 S.Ct. at 1627, 1628.

There can be no question that when the defendant in the instant case refused to sign anything until he saw his attorney, he indicated a desire to remain "silent." Since the interrogation continued beyond that point, the Government had a "heavy burden" to show that the subsequent interrogation of the defendant took place after he "knowingly and intelligently" waived his Miranda rights. We do not believe that the Government satisfied this burden.

As we recently said in United States v. Smith, 379 F.2d 628, 633 (7th Cir. 1967), a case discussing the thrust of the Miranda rules, there must be a clear showing "after known retainer * * * of counsel * * * that the accused deliberately and understandingly chose to forego the assistance of counsel at such interrogation." Here the defendant's refusal to sign the waiver form, followed by an...

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