United States v. Watson, 72-1964 Summary Calendar.

• Citation: 469 F.2d 362
• Decision Date: 22 November 1972
• Docket Number: No. 72-1964 Summary Calendar.,72-1964 Summary Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles David WATSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

469 F.2d 362 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Charles David WATSON, Defendant-Appellant.

No. 72-1964 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

November 22, 1972.

Charles R. Desiderio, Atlanta, Ga. (Court appointed), for defendant-appellant.

John W. Stokes, U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Appellant Watson was convicted under 18 U.S.C. § 659 for knowing possession of merchandise stolen while in interstate commerce and sentenced to eight years under 18 U.S.C. § 4208(a). In this appeal Watson challenges the use at his trial of statements given by him to agents of the Federal Bureau of Investigation during a custodial interview at Atlanta Police headquarters.

Appellant asserts, first, that the district court failed to apply the proper standard for "burden of proof" to the question of Watson's "knowing, intelligent, and voluntary" waiver of his constitutional rights. Secondly, he asserts that even if the proper standard on burden of proof was indeed applied by the trial court, the government failed to meet that standard.

I.

Appellant's first contention seems to be a valiant attempt to avoid the application of Lego v. Twomey, 1972, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618, to his case. In Lego a four-Justice majority of a seven-Justice court held that in order to establish the admissibility of a confession, the prosecution was constitutionally required to show voluntariness by only a preponderance of the evidence. In seeking to avoid the application of Lego, the appellant constructs an argument that while Lego established a lower burden of proof on the issue of the "voluntariness" of a confession, a heavier burden still rests on the government to show "knowing, intelligent, and voluntary waiver". Thus, appellant maintains that there are two separate tests—one on "voluntariness", the other on "waiver"—which must be separately applied before allowing custodial confessions into evidence, and that separate standards for "burden of proof" apply to each of these tests.

In pursuing this line, appellant first argues that the trial court was bound to rule directly and separately on each of these two alleged elements and that in this case the district court never ruled directly on the issue of waiver. A reading of the order denying suppression shows that both elements were before the district court and that both were clearly included in the denial.¹

Next, appellant presses his primary argument, asserting that there are two separate tests with separate burdens of proof. Resolution of this point requires a close reading of the Lego case and a clear understanding of just what a trial court is ruling on when it allows or rejects a proffered confession. This court feels that there is only one basic issue which the trial court must decide and that that is admissibility. This ultimate determination involves the determination of several subsidiary issues including the possible application of the various exclusionary rules (such as the one requiring waiver) and whether the incriminating statements themselves were coerced. The notion of "voluntariness" runs all through these determinations. We feel that the proper analysis is that no statement can indeed be "voluntary" unless there is a finding of knowing and intelligent waiver. As the Supreme Court indicated in Miranda v. Arizona, 1966, 384 U.S. 436, 457-458, 86 S.Ct. 1602, 16 L.Ed.2d 694 in order for a statement to be the "product of free choice" (voluntary), the "appropriate safeguards" (warnings and knowing waiver) must be taken at the outset.² The determination of all these issues therefore underlies a finding of "voluntariness" which, in turn, is the key to "admissibility".

We now turn to Lego v. Twomey, supra, and an analysis of just to what issue it applies a preponderance test. One of the contentions put forth in Lego was that evidence offered against a defendant at a criminal trial and challenged on constitutional grounds must be determined admissible beyond a reasonable doubt in order to give adequate protection to those values which exclusionary rules are designed to serve.

* * * * * *

In each instance, and without regard to its probative value, evidence is kept from the trier of guilt or innocence for reasons wholly apart from enhancing the reliability of verdicts. These independent values, it is urged, themselves require a stricter standard of proof in judging admissibility.

404 U.S. at 487, 92 S.Ct. at 626.

The Court then went on to elaborate on what it felt was the proper standard of proof on the admissibility of custodial confessions. In so doing, the Court directly discussed the preponderance standard and the exclusionary rules:

But, from our experience over this period of time no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence. Petitioner offers nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard. Without good cause, we are unwilling to expand currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence before state juries and by revising the standards applicable in collateral proceedings. Sound reason for moving further in this direction has not been offered here nor do we discern any at the present time. This is particularly true since the exclusionary rules are very much aimed at deterring lawless conduct by police and prosecution and it is very doubtful that escalating the prosecution\'s burden of proof in Fourth and Fifth Amendment suppression hearings would be sufficiently productive in this respect to outweigh the public interest in placing probative evidence before juries for the purpose of arriving at truthful decisions about guilt or innocence.

404 U.S. at 488, 92 S.Ct. at 626.

We feel that this language shows that the Supreme Court felt that the proper standard by which to judge "admissibility", with all its constituent parts, is preponderance of the evidence. The Court seems to have expressly weighed the significance and value of the various exclusionary rules and to have held that requiring proof beyond a reasonable doubt on these issues did not outweigh the value in getting the evidence before the jury.

Thus, we reject the alleged inapplicability of Lego to this case. In order to avoid application of the various exclusionary rules to custodial confessions, all the government must do is show that the rule was satisfied by presenting a preponderance of the evidence. It seems rather incongruous to this court that the Supreme Court intended that the issue of whether or not certain statements were the product of governmental coercion need only be shown by a preponderance of the evidence and at the same time had the intention of requiring that evidence of waiver of constitutional rights be presented "beyond a reasonable doubt".

There seems to be one other possible argument for requiring a standard greater than "preponderance" in this case. This case, unlike Lego, is a direct appeal from a federal district court, not the review of a state court as in some habeas proceeding. In Lego the Supreme Court spoke of the power of the states to adopt a higher standard than preponderance if they so desired. It might then be argued that there is an existing federal standard, applicable only in prosecutions by the United States, which was greater than "preponderance". Such a position has apparently been taken in some other circuits by denominating a "reasonable doubt" requirement as within the "supervisory power" over the lower federal courts. Ralph v. Warden, 4 Cir.1970, 438 F.2d 786, 793; Pea v. United States, 130 U.S. App.D.C. 66, 397 F.2d 627, 1968. This course, however, seems clearly foreclosed by the opinion of the Supreme Court in Lego:

It is no more persuasive to impose the stricter standard of proof as an exercise of supervisory power rather than as a constitutional rule.

404 U.S. at 488, n. 16, 92 S.Ct. at 626.

Therefore, it seems that at this time the proper standard for a federal district court to apply in determining the admissibility of a confession is the preponderance standard.

II.

Thus, the only question left for determination is whether the government has sustained its burden of showing that the custodial statements were in all respects the product of a free and informed choice.

In passing on whether the government has shown admissibility by a preponderance, we must, of course, accept the factual determinations and credibility choices made by the trial judge unless they are clearly erroneous. We wish to point out, however, that this is not the same standard which applies to the issue of admissibility by a preponderance of the evidence. That is a legal conclusion to be drawn from the accepted facts.

In viewing the evidence, this court must look to the totality of circumstances to determine if the government has indeed proven the elements of admissibility by a preponderance. Therefore, it becomes necessary to set forth in some detail the factual setting which gives rise to appellant's claim.

Appellant Watson was arrested on January 22, 1972, at about 7:00 A.M. by officers of the Atlanta Police Department on a charge of public drunkenness. In unchallenged testimony it was shown that over a period of from twelve to twenty hours immediately prior to his arrest Watson had consumed a substantial amount of alcohol and had taken a number of "twisters" (a type of pep pill). He had also had little if any sleep during the period.

Watson was and is a diabetic, requiring periodic insulin injections. Soon after his arrest, Watson, who had not recently had an insulin shot, told the Atlanta officers...