United States v. Van Dusen

• Citation: 431 F.2d 1278
• Decision Date: 05 October 1970
• Docket Number: No. 7580.,7580.
• Parties: UNITED STATES of America, Appellee, v. Richard Clinton VAN DUSEN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

431 F.2d 1278 (1970)

UNITED STATES of America, Appellee, v. Richard Clinton VAN DUSEN, Defendant, Appellant.

No. 7580.

United States Court of Appeals, First Circuit.

October 5, 1970.

Howard H. Dana, Jr., Portland, Me., by appointment of the Court, with whom Verrill, Dana, Philbrick, Putnam & Williamson, Portland, Me., was on brief, for defendant-appellant.

Peter Mills, U. S. Atty., for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

This appeal from a conviction for wilfully causing the interstate transportation of a forged check in violation of 18 U.S.C. § 2314 principally challenges the district court's finding, following a voir dire hearing, that certain statements made to FBI agents by appellant were made with a full understanding of his rights.

Appellant had been held in a New York jail for nearly a month on an unrelated state criminal charge when he was interviewed by two FBI agents. After identifying themselves, the agents handed appellant an "advice of rights" form which contained two parts. The first, entitled "Your Rights", stated the full Miranda warnings. The second portion, entitled "Waiver of Rights", contained a statement to be signed by the person sought to be interrogated to the effect that he understood his rights and was nevertheless willing to answer questions. The agents did not read the form to appellant but testified that a period of some minutes passed during which they observed appellant's eyes move across the page. He refused to sign the waiver, but when asked by the agents, indicated he understood his rights and was willing to talk. He then proceeded to give information which, while implicating himself, identified another as the person who gave him the checks which he signed. At some point in the interview appellant stated that he would "sign papers" when the authorities located this person. The interview lasted less than one hour and no inducements or trickery of any kind were employed by the agents.

Appellant, who denied reading the form, stated to the court that he knew that he had the right to remain silent but also testified that he thought that in the absence of his signature his statements could not be used against him. Nearly five months later, appellant, still in the New York jail, having learned of a warrant for his arrest in the check charge, requested an interview with the FBI. An agent visited him and presented him with the warning form, insisting that the waiver form be signed before any further conversation. Appellant read the form, signed it, and proceeded to talk.

Appellant asserts that, faced with a refusal to sign the waiver, the agents should have given the warning orally. We cannot say that as a matter of law such a course of action is required. There was no indication that appellant could not or did not read the form. Appellant had adequate time to read the 22 lines on the form; he appeared to read; he said he understood. To require the agents to read the form aloud in every such situation would seem both to discourage use of a printed form and to mechanize a ritual without necessarily communicating more understanding. In this case, even if appellant is to be believed, an oral presentation of his rights would have added little. He assertedly thought that his signature was a magical key and that, so long as he refused his signature, he could talk with impunity. The only relevant response to such a circumstance would have been a statement disabusing him of this illusion.

We think that such an addendum would have been prudent. In the delicate area of advising one of his rights, where testimony is often conflicting, the act of refusing to sign a waiver is concrete and indisputable. When such an act occurs, followed by a willingness to talk, this is a signal of some quirk of reasoning which may simply be a dislike of affixing a signature to any document but which may be more. It may indicate a serious misunderstanding on the part of the accused. In such a succession of events, we wish to make it clear to the courts and prosecutors in this circuit that the burden of persuasion resting on the prosecution measurably increases. It would, we think, be folly to try to cast this principle in the form of a specific required practice. Indeed, were we so to rule, a suspect could, by refusing to sign and subsequently talking freely, enjoy the luxury of an immunity bath at no price at all.

It is clear from the Miranda decision and its progeny that a written waiver of rights is not required. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Klingler v. United States, 409 F.2d 299, 308 (8th Cir. 1969); United States v. Thompson, 417 F.2d 196, 197 (4th Cir. 1969). The adoption and widespread use of the written waiver form, however, has mutually benefitted the law officer and the accused: the police can more easily meet the "heavy burden" of Miranda by producing a signed waiver in court; the accused is given a clear and complete recitation of his constitutional rights as required by court pronouncements. Only a few courts have ever confronted the problem of a refusal to sign a waiver form and none have adopted a proscriptive code approach which we expressly reject here.

We have encountered this issue before, only peripherally, in Pallotta v. United States, 404 F.2d 1035 (1st Cir. 1968). Although noticing as significant the fact that the defendant had refused to sign a waiver of rights, we did not fully discuss the effect of such a refusal, since, in Pallotta,...