United States v. Billie Jerome Allen, United States of America v. Norris G. Holder

RICHARD S. ARNOLD, Circuit Judge,

dissenting.

I respectfully dissent.

A.

I believe Mr. Allen’s confession is inadmissible. The facts are undisputed. Mr. Allen was arrested at approximately 2:00 a.m. on a Tuesday and brought to a police interrogation room. At approximately 4:00 a.m., he requested the appointment of counsel. Questioning stopped, but no attempts were made at that point to secure counsel. Given the hour, I cannot say that this was unreasonable.

Mr. Allen was kept in the interrogation room handcuffed to a table for the remainder of the early morning. At approximately 8:00 a.m., the police asked Mr. Allen if, in light of his request for counsel, he was still willing to provide blood, hair, and saliva samples, as he had previously indicated he would, and he agreed. By 9:00 a.m., or certainly by 10:00 a.m., it should have been feasible to take the steps necessary to honor Mr. Allen’s request for counsel. This was not done.

Instead, at approximately 10:10 a.m., the police approached Mr. Allen again and asked him to participate in a lineup. The police reminded Mr. Allen of his previous *796 request for counsel. Mr. Allen agreed to participate in the lineup without the presence of counsel. After the lineup, the police informed Mr. Allen that three out of four witnesses had placed him at the scene of the crime. Mr. Allen then stated that he wanted to talk to a police officer he knew, even though counsel had not been obtained. Mr. Allen then proceeded to confess to this police officer.

These facts can lead to only one conclusion: Mr. Allen’s request for counsel was not honored. As the Court explains, once an individual expresses a desire to deal with the police only through counsel, the police may not further interrogate the defendant “until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversation with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981). The purpose of this “stringent” rule is to ensure that officials “scrupulously honor” the right of an accused in custody, who has requested the assistance of counsel, to have all interrogation cease until an attorney is present. James v. Arizona, 469 U.S. 990, 992 , 105 S.Ct. 398 , 83 L.Ed.2d 332 (1984) (Brennan, J., dissenting from denial of certiorari).

Interrogation in this context includes “any words or actions ... (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the defendant.” Rhode Island v. Innis, 446 U.S. 291, 301 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980). If, after the right to counsel has been invoked, the police do “initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntary ■ and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards.” McNeil v. Wisconsin, 501 U.S. 171, 177 , 111 S.Ct. 2204 , 115 L.Ed.2d 158 (1991).

I agree with the proposition for which the Court cites United States v. Payne, 954 F.2d 199, 203 (4th Cir.1992): After a suspect has invoked his right to counsel, not all statements by the police regarding the nature of the evidence against him constitute a forbidden interrogation as a matter of law. Rather, the circumstances of each case must be examined. In Payne , for example, the suspect told the arresting agents that he wished to consult with counsel. He spoke with his attorney by telephone, and told the agents he would consult with counsel in person before speaking with them. When processing was complete, he was transported by car to another location. During the ride, an agent in the car received a call that a handgun had been found at the suspect’s residence. The agent told this to the suspect, who then stated that he had the gun for protection. Noting that Mr. Payne was not subjected to “compelling influences, psychological ploys, or direct questioning,” the Court held that the suspect’s statement was admissible.

The situation in the present case is different. Mr. Allen’s request for counsel was ignored beyond the time of day when it was feasible to secure counsel for him. The police reinitiated contact with Mr. Allen several times before any attempt was made to honor his request for counsel. The request that he participate in a lineup and the statement that three out of four witnesses had identified him occurred after Mr. Allen had been chained to a table in the interrogation room for seven hours— and five hours after he asked for counsel. It seems apparent that the police were *797 hoping Mr. Allen would weaken, which is exactly what occurred.

The Court focuses its inquiry on whether the statement by the police to Mr. Allen that witnesses had identified him in the lineup constituted an “interrogation.” The Court makes no mention in its analysis of the request by the police that Mr. Allen participate in a lineup without the presence of counsel. As stated above, this request was initiated by the police hours after Mr. Allen had requested counsel. I believe it is clear that this request was impermissible under Edwards. Cf. Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 , 103 S.Ct. 2830 , 77 L.Ed.2d 405 (1983) (suggestion -by police that suspect take a polygraph examination and statement by examiner that he did not believe suspect did not violate Edwards because suspect, and not the police, had initiated further conversation about the investigation after he had requested counsel).

The two cases from our Circuit relied upon by the Court, United States v. Williams, 136 F.3d 547 (8th Cir.1998), and Holman v. Kemna, 212 F.3d 413 (8th Cir.2000), offer no support for its position, and actually undermine it. In Williams , the Court assumed that an officer’s statement that the defendant had been identified in a lineup was an “interrogation.” However, because the defendant had not previously asserted any of his Miranda rights, his statement after this “interrogation” that he wanted to talk was not coerced, and his subsequent statements were admissible. 136 F.3d at 553 . Here there is no dispute that Mr. Allen had invoked his right to counsel.

In Holman , we also assumed that a police officer’s visit to the defendant’s cell without contacting the defendant’s attorney, to inform the defendant that his girlfriend had confessed, would be an improper custodial interrogation. The defendant’s confession obtained the next day, however, was held to be admissible because of the lapse in time from the impermissible interrogation to the confession. During this time, the defendant had a chance to speak to his stepfather who urged him to wait until his attorney could be contacted and to sleep on it. 212 F.3d at 417-20 . Even under those facts, the Court found the question to be close, and one of the Judges dissented. Id. at 421-22 . Here, of course, there was no lapse of time between the police telling Mr. Allen that he had been identified in the lineup and his confession.

Mr. Allen’s right to counsel was not “scrupulously honored.” His confession was tainted by unconstitutional conduct and was inadmissible. Although other evidence linked Mr. Allen to the crime, the admission of his confession was not harmless beyond a reasonable doubt. Accordingly, he is entitled to a new trial. I would reverse.

B.

I also dissent with regard to Mr. Holder’s convictions and sentences. I believe that the Court errs in its conclusion with regard to the jury instructions on Count I, charging a violation of 18 U.S.C. § 2113 (e). This section provides, “[w]hoever, in committing [a bank robbery] ... kills a person ... shall ... be punished by death or life imprisonment.” Under the instructions in Mr. Holder’s case, the jury was permitted to find him guilty not just as a principal, but also as an aider and abettor. The Court holds that a conviction as an aider and abettor under this statute does not require a finding of specific intent to aid and abet the killing, but only of specific intent to aid and abet the robbery. Ante at 783.

*798 I believe the position taken by the Ninth Circuit on this issue is the correct one. An accomplice charged under § 2113(e) must aid and abet the principal both in the bank robbery and in the killing. “It is not enough for the jury to find that the defendant aided and abetted a bank robbery in which a killing occurred.” United States v. Jones, 678 F.2d 102, 106 (9th Cir.1982); United States v. Dinkane, 17 F.3d 1192, 1197 (9th Cir.1994) (same reasoning applied to § 2113(d) — -armed assault during commission of a bank robbery); United States v. Short, 493 F.2d 1170, 1172 (9th Cir.1974) (same); see also United States v. Longoria, 569 F.2d 422, 425 (5th Cir.1978) (quoting United States v. Short with approval and applying it to a charge of aiding and abetting the possession of drugs with the intent to distribute).

This position is strengthened by Jones v. United States, 526 U.S. 227 , 119 S.Ct. 1215, 1220-21 , 143 L.Ed.2d 311 (1999), which establishes beyond argument that the relevant factor in § 2113(e) of a killing is an essential element of the offense of which Mr. Holder was convicted. Our own Model Criminal Jury Instructions also support Mr. Holder’s argument. The model instruction for bank robbery in violation of 18 U.S.C. § 2113 (d), which is comparable to § 2113(e) except that it applies to an armed assault during the robbery rather than a killing, lists the assault as a separate element of the offense which the defendant must commit. I believe the clear implication is that intent is required for this element as well as for the first element — the robbery.

Because this is a death-penalty case, other, even more compelling, principles mandate that Mr. Holder’s sentences on both Counts I and II must be reversed. Before a defendant can be sentenced to death, the Eighth Amendment requires that he be guilty of a certain degree of culpable conduct. Fairchild v. Norris, 21 F.3d 799, 802 (8th Cir.1994). In the context of felony murder, the Supreme Court held that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the ... culpability requirement.” Tison v. Arizona, 481 U.S. 137, 158 , 107 S.Ct. 1676 , 95 L.Ed.2d 127 (1987).

The jury instructions in Mr. Holder’s case fall short of this standard. The instructions on Count I did not require the finding of any mental state with regard to the killing. With regard to Count II, the jury was instructed that “[k]illing is done with ‘malice aforethought’ if it results from the perpetration of a bank robbery in which the defendant was aware of the serious risk of death attending his conduct.” “Aware of serious risk of death” is a less stringent standard than “reckless indifference to human life.” Being aware of a serious risk attending one’s conduct is gross negligence at best. We know that gross negligence does not rise to the level of reckless disregard or indifference in tort law. See Hunter v. Namanny 219 F.3d 825 , 833 (8th Cir.2000). These standards should certainly not be seen as equivalent in the context of death-penalty jurisprudence. Accordingly, I would reverse and remand with directions that Mr. Holder’s death sentence be changed to life in prison without parole.