United States v. Calvin Demonsier Clements

CHAPMAN, Circuit Judge,

concurring in part and dissenting in part:

I respectfully dissent from that portion of the majority opinion holding that this case must be remanded to the district court for a determination of whether Clements’ confession and his consent to a search for the rifle were obtained prior to his being informed of the indictment.

I

Before discussing the new rule which the majority opinion establishes on waiver of a defendant’s sixth amendment right to counsel, I would point out that, even if the introduction of Clements’ confession and the rifle violated his right to counsel, the introduction of this evidence was harmless error because both the rifle and the confession were simply cumulative of other evidence of guilt. In light of the substantial evidence of defendant’s guilt independent of the confession and the rifle, I would hold that it is clear “beyond a reasonable doubt that the errors [the defendant complains of] did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).

In order to establish that a defendant has “received” a firearm in violation of 18 U.S.C. § 922 (h)(1) (1982), it is not necessary to show that the defendant actually possessed a firearm in violation of that statute. The statute is violated by a showing that the defendant took possession of or knowingly accepted the firearm. United States v. Turnmire, 574 F.2d 1156 (4th Cir.1978). Accordingly, Clements’ purchase of the rifle constituted receipt or acceptance of a firearm independent of his subsequent possession of the firearm. Clements’ purchase of the rifle was established by the testimony of a sales clerk from the store where the rifle was purchased and by the testimony of both the defendant and his wife. Further, the Alcohol, Tobacco, and Firearms (ATF) Form 4473 which the defendant was required to complete before purchasing the rifle contained a signature which was connected to the defendant by the govern- *1038 merit’s handwriting expert. This evidence was more than adequate to show receipt of the rifle and the evidence that the rifle was found in the defendant’s home two years after its purchase could not have contributed more than slightly to Clements’ conviction on the charge of illegal receipt of the rifle.

There was also substantial independent evidence to convict Clements on the other count of the indictment that charged him with making a false statement on ATF Form 4473. As stated above, the defendant’s signature on the form was connected to Clements by the government’s handwriting expert. In addition, the testimony of the sales clerk established that Clements read and completed the form in her presence.

II

Though I think it is unnecessary to reach the issue of whether Clements’ sixth amendment right to counsel was violated by the introduction of the rifle and his confession, the majority’s treatment of that issue forces me to dissent.

The majority establishes a per se rule that a defendant may never waive his right to counsel subsequent to indictment unless the defendant has been informed that he is under indictment or has actual or constructive knowledge of the indictment. This rule rests on the assumption that the warnings required by Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966) are insufficient to inform a defendant of his sixth amendment right to counsel. I cannot accept this assumption. The language of the district court in its order denying Clements’ motion to suppress is instructive:

When Clements was first arrested and again at the beginning of the taped interview, he was given the now familiar Miranda warnings. Although the “prime purpose of Miranda was to guarantee full effectuation of the privilege against self-incrimination,” Johnson v. New Jersey, 384 U.S. 719, 729 [ 86 S.Ct. 1772, 1778 , 16 L.Ed.2d 882 ] (1966), it is clear that the warnings given here informed Clements of his sixth amendment right to counsel, as well as his fifth amendment right to protection against self incrimination.

United States v. Clements, No. 82-00016-E(H) (N.D.W.Va., filed Aug. 13, 1982).

The majority recognizes that “there is no uniform approach to the business of determining whether counsel has been waived.” Ante at 11. The Courts of Appeal that have directly addressed the issue have taken varying approaches. The majority opinion does a commendable job of reviewing the decisions of the other circuits and I do not disagree -with its interpretations of those decisions. However, I do disagree with the conclusion it seeks to draw.

Only the Second Circuit has gone so far as to adopt a per se rule requiring that a defendant be informed of a pending indictment before he can exercise an “intentional relinquishment or abandonment,” Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938), of his sixth amendment right to counsel. United States v. Mohabir, 624 F.2d 1140, 1153 (2d Cir.1980). 1 The Fifth Circuit, on the other hand, has taken a case by case approach that evaluates all the circumstances of a particular case to determine whether a defendant possessed knowledge of his right to counsel and intentionally relinquished that right. See, e.g. Jordan v. Watkins, 681 F.2d 1067 , (5th Cir.1982); United States v. Brown, 569 F.2d 236 (5th Cir.1978) (en banc).

I think the Fifth Circuit’s approach is more reasoned. The majority characterizes the Fifth Circuit decisions in Jordan and Brown as finding waivers of sixth amendment rights solely from the fact that the defendants were given Miranda warnings and indicated an understanding of those *1039 warnings. Although Miranda warnings certainly played an important part in each case, the findings of waiver did not rest solely on the use of those familiar warnings. In Jordan , the defendant was twenty-nine years old, possessed the educational equivalent of two years of college, and had the experience of seven years in “the service” in personal management and air traffic control. He was given Miranda warnings at least four times before he made the challenged confession and he responded “Yes, I do” when asked after the last warning if he understood his rights. Finally, there was no evidence that the defendant’s statement was influenced by an atmosphere of inducement and coercion. 681 F.2d at 1074 . In Brown , the defendant was a college graduate who had worked as an elementary school teacher for thirteen years. In the days before she made the challenged statement, she had been advised of her rights by a security guard and a city policeman in connection with related state charges. Immediately before she made the statement, Miranda warnings were read to her and she read and signed an express waiver of rights form. The interrogation took place in a public corridor shortly before the defendant’s preliminary hearing on the related state charges and there was no evidence of any improper inducement or coercion. 569 F.2d at 238-239 .

Clements, at the time of his confession, was a 33 year old electrical maintenance foreman who had completed high school, nine hours of college credits and various electronics courses and seminars. Before he was given any Miranda warnings and in response to Special Agent Webb’s statement that he had a warrant for Clements’ arrest for violations of federal firearms laws, Clements stated that he thought his arrest involved a firearm charge and began discussing the firearm in question, a Marlin .22 rifle. 2 Clements was stopped at this point by Special Agent Webb and informed of his Miranda rights and he responded that he understood those rights. Before he gave a second, taped version of his statement, Clements was again informed of his Miranda rights and he again responded that he understood those rights. Clements was not detained or questioned for such a period of time that would give rise to any inference of improper coercion and there was no other evidence of coercion. Only forty minutes elapsed between the time Clements was arrested and the time his taped interview with ATF agents was completed.

Before we ask you any questions, it is my duty to advise you of your rights. You have the right to remain silent; anything you say ean be used against you in court or other proceedings; you have the right to consult an attorney before making any statement or answering any questions; you may have him present with you during questioning; you may have an attorney appointed by the Court to represent you if you cannot afford or otherwise obtain one; if you decide to answer questions now with or without a lawyer, you still have the right to stop questioning at any time or to stop questioning for the purpose of consulting a lawyer; however, you may waive the right to advice of counsel and your right to remain silent, and you may answer questions or make a statement without consulting a lawyer if you so desire.

Finally, and most importantly, a considerable portion of the standard ATF Miranda warnings form which was read to Clements before questioning is devoted to an explanation of a defendant’s right to counsel. 3 Clements does not argue that his waiver was made unwillingly or in response to any kind of trickery. He does not dispute that he knew of his right to consult an attorney before questioning and have an attorney present during questioning. His only argument is that knowledge of his indictment was necessary to make his waiver intentional and knowing within the meaning of Johnson v. Zerbst.

On the facts of this case, it cannot be said that knowledge of the indictment was nec *1040 essary in order for Clements’ waiver to be knowing and intentional. Although no decision of the Supreme Court precludes the per se rule adopted by the majority, it is equally true that such a rule is not required by any Supreme Court decision. 4 Only the Second Circuit has seen fit to adopt a per se rule. 5 Although the majority disavows ordaining a per se rule, ante 1036 n. 6, I see no difference in what it has done and a per se rule where the investigating officer is aware of the indictment. If the purpose of the majority’s ruling is to protect the rights of a person under indictment, why should there be a difference as to whether the interrogating officer knew or did not know of the indictment? If there is a distinction, it indicates the purpose of the rule is to punish the officer and not to protect the rights of the accused.

I think the rule contributes no further protection to the sixth amendment rights of criminal defendants and that we should refrain from adopting what appears to be an inflexible rule.

. The Second Circuit rule, in fact, goes further than the requirement that the defendant be informed of a pending indictment. It requires that, before a defendant in a federal prosecution can waive his sixth amendment right to the presence of counsel during post indictment interrogation, he must be taken before a federal judicial officer to have the right explained to him. United States v. Mohabir, 624 F.2d 1140, 1153 (2d Cir.1980).

. I do not mean to suggest that these somewhat “spontaneous” statements given before Clements was advised of his Miranda rights should be treated any differently from the statements Clements made after receiving Miranda warnings. However, these statements do offer additional evidence of the lack of inducement or trickery surrounding Clements’ statement and of the intentional nature of Clements’ waiver of his sixth amendment right to counsel.

. The text of the warnings is as follows:

. The Supreme Court’s approach to waiver of a defendant’s sixth amendment right to have counsel present during post-indictment interrogation is illustrated by Brewer v. Williams, 430 U.S. 387 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977). In Brewer , the court’s finding of no waiver was based on a consideration of the totality of the circumstances surrounding the defendant’s confession, an approach which implicitly counsels against the use of per se rules. More recently, in North Carolina v. Butler, 441 U.S. 369 , 99 S.Ct. 1755 , 60 L.Ed.2d 286 (1979) the Supreme Court considered the per se rule employed by the North Carolina Supreme Court which prevented the introduction in evidence against a defendant of his statement given during custodial interrogation unless the defendant had explicitly waived his right to the presence of a lawyer. The court held that the North Carolina Supreme Court’s per se rule was not required by Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966) or any other principles of constitutional law. During its discussion of waiver of constitutional rights, the court made the following observation which, although dicta, may be indicative of the court’s approach to the use of per se rules to decide questions of waiver of constitutional rights:

This is not the first criminal case to question whether a defendant waived his constitutional rights. It is an issue with which courts must repeatedly deal. Even when a right so fundamental as that to counsel at trial is involved, the question of waiver must be determined on “the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464 [ 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 ], See also United States v. Washington, 431 U.S. 181, 188 [ 97 S.Ct. 1814, 1819 , 52 L.Ed.2d 238 ]; Schneckloth v. Bustamonte, 412 U.S. 218 [ 93 S.Ct. 2041 , 36 L.Ed.2d 854 ]; Frazier v. Cupp, 394 U.S. 731, 739 [ 89 S.Ct. 1420, 1424 , 22 L.Ed.2d 684 ],

441 U.S. at 374-75 , 99 S.Ct. 1757 -58 (1979).

. United States v. Mohabir, 624 F.2d 1140, 1153 (2d Cir.1980).