United States v. Hemingway ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5902
RICKY LEWIS HEMINGWAY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-95-462)
Submitted: March 18, 1997
Decided: September 4, 1997
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. J. Rene Josey, United States Attorney, William E. Day,
II, Assistant United States Attorney, Florence, South Carolina, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Ricky Lewis Hemingway appeals from his conviction of transfer-
ring counterfeit federal reserve notes in violation of 18 U.S.C. § 473(1994). Hemingway contends that the district court erred in determin-
ing that he had waived his right to a voluntariness hearing in connec-
tion with an incriminating statement and in not instructing the jury
concerning its role in determining the voluntariness of his incriminat-
ing statements. We affirm.
Prior to trial, Hemingway made incriminating statements to Secret
Service Agent Johstono. Hemingway admitted to giving some $50
bills to his girlfriend, Marilyn Simmons, and stated that Simmons
may have cashed the two $50 bills at a Winn-Dixie store. Hemingway
did not testify at trial. The Government called Agent Johstono who,
after being qualified as an expert, testified that both bills were coun-
terfeit. During the direct examination of Johstono, the court held a
bench conference and the Government advised the court that it was
going to question Johstono about the statements of both Hemingway
and Simmons. Both counsel indicated that they had no objection.
When the Government started to question Johstono regarding his
contacts with Hemingway, Hemingway requested a bench conference
and challenged whether or not he was read his rights prior to his state-
ments. The court responded, stating for the record that it did not con-
duct a voluntariness hearing because at the earlier bench conference
it had concluded that Hemingway waived any challenge to the issue
of whether or not he was advised of his rights.*
Hemingway contests the district court's determination that he had
waived his right to a hearing, out of the presence of the jury, on the
issue of the voluntariness of his incriminating statements made to
Johstono. See 18 U.S.C. § 3501(a) (1982). By failing to request a
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*The court also stated that it had determined that Hemingway was not
in custody and therefore there was no requirement to advise him of his
rights. Hemingway's advice of rights form was admitted into evidence,
without objection.
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hearing on the voluntariness of his confession in a timely fashion,
Hemingway waived his right to have a voluntariness hearing. See
United States v. Wilson, 895 F.2d 168, 172-73 (4th Cir. 1990). Hem-
ingway failed to make a pretrial motion to suppress. See Wilson, 895
F.2d at 172-73; see also Fed. R. Crim. P. 12(b)(3). Additionally, when
the Government indicated that his confession would be discussed on
direct examination, Hemingway failed to object. Furthermore, when
Hemingway did request a voluntariness hearing, he failed to show
cause that relief from his waiver should be granted. See Wilson, 895
F.2d at 172-73; see also Fed. R. Crim. P. 12(f). We conclude that the
district court did not abuse its discretion in denying Hemingway relief
from his waiver of his right to have a voluntariness hearing.
Hemingway also contends that the district court committed revers-
ible error because it did not instruct the jury concerning its role in
determining the voluntariness of the incriminating statements made to
Secret Service Agent Johstono. The Government counters that Hem-
ingway's statement was not a "confession" and further states that even
if § 3501 is applicable, the trial court did not err because no genuine
issue of voluntariness of the statements was presented to the jury.
Hemingway's statements to Johstono are self-incriminating and thus
may be construed as a "confession" under § 3501. Whether requested
or not, the trial court should instruct the jury specifically on the law
governing the use of a confession, and failure to do so is clear error.
See United States v. Sauls, 520 F.2d 568, 570 (4th Cir. 1975); United
States v. Inman, 352 F.2d 954, 956 (4th Cir. 1965). However, reversal
will not follow if the failure is harmless. See Sauls, 520 F.2d at 570.
The fact that voluntariness was not put before the jury suggests, and
we so find, that any error in not specifically instructing the jury on
voluntariness, as required by § 3501, was harmless. Cf. Sauls, 520
F.2d at 570 (concluding that failure of trial court to instruct jury spe-
cifically on "``issue upon which there was no evidence before them'"
could not be regarded as prejudicial) (quoting United States v. Goss,
484 F.2d 434, 438 (6th Cir. 1973)).
Hemingway's conviction is accordingly affirmed. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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