United States v. Anthony Charles Durham , 475 F.2d 208 ( 1973 )

CASTLE, Senior Circuit Judge

(dissenting) .

Two compelling reasons lead me to find that Durham’s confession of the robbery was properly admitted at trial: 1) Durham voluntarily and knowingly waived any right to have his counsel notified of the interview at which he made his confession, and 2) under applicable constitutional doctrines governing the admissibility of confessions existing at the time of trial, the trial court had to first find some indication that Durham’s confession was involuntary before it was required to hold a sua sponte hearing on its admissibility and on the validity of any waiver of notice to Durham’s attorney. On the strength of these reasons, I respectfully dissent from the views of Judges Swygert and Pell.

I.

Judge Swygert holds in his opinion that the FBI was obligated to inform Durham’s counsel of the interview, and that in the absence of such notification, any statement taken at the interview would be inadmissible. This analysis, however, fails to consider whether Durham waived any right to have his retained counsel notified of the FBI interview on January 23, 1961, and whether this waiver would relieve the FBI from the duty of telling Durham’s counsel of its planned meeting with his client.

The facts of this case show an undisputed case of voluntary and knowing waiver. Durham knew and was told that he could contact his counsel and have him present, but he decided that he did not need or want him. FBI agents testified without contradiction that they advised Durham of their identity, advised him that anything he said might be used against him, and advised him that he had the right to the services of an attorney. In spite of these warnings— and their obvious implications that Durham could either remain silent or have his counsel present while he gave a statement — Durham chose to go ahead and to admit his participation in the robbery.¹ These facts demonstrate Durham’s clear and knowing waiver of any right to have his counsel notified of the interview.

The circumstances surrounding this waiver lend added credence to the conclusion that it was knowing and voluntary, for defendant had freely indicated his willingness to talk to FBI agents without his counsel being present on several occasions prior to the date of his confession. On December 20, 1960, the date on which Durham was first questioned by the FBI, his counsel arranged the time and place for the meeting. Yet, when Durham showed up for the session, his counsel was not accompanying him, even though the session was to last four hours. Durham freely admitted at trial that on subsequent occasions he “always talked at will” with FBI Agent Doerner about “anything he would ask me.” Furthermore, after defendant balked at signing the confession he gave to the FBI, he told agents that he wanted to clear the matter up and that he would give them another statement after he had talked with his counsel. In short, the record indicates many occasions where the defendant felt that he had no need for his counsel’s presence, and it supports the uncontradicted fact that he waived any right to have his counsel notified or present on January 23, 1961 when he confessed to the robbery.

Applicable case law holds that because of this waiver, there was no need for FBI agents to notify Durham’s counsel of the impending questioning session. The authority cited in Judge Swygert’s opinion does not contradict this fact. Both Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682 (1965), are irrelevant to situations involving a waiver of the right to have counsel present, for, as Judge Cummings correctly pointed out in United States v. Crisp, 435 F.2d 354, 358 (1970), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116 (1971), both these cases involved the deliberate acquisition of information under circumstances preventing an effective exercise or waiver of rights to counsel.² On the contrary, the circumstances surrounding Durham’s confession did not prevent an effective waiver of the right to have counsel notified. In fact, the attempt to fashion a per se rule that will exclude all confessions obtained when retained or appointed counsel has not been notified of the questioning session is contrary to established authority in this circuit that no such automatic rules should apply in such circumstances. United States v. Springer, 460 F.2d 1344, 1350 (7th Cir. 1972), United States v. Crisp, 435 F.2d at 358, United States v. Smith, 379 F.2d 628, 633 (7th Cir.), cert. denied, 389 U.S. 993, 88 S.Ct. 491, 19 L.Ed.2d 486 (1967).

Given the evidence that Durham knowingly waived his right to have his counsel notified of the interview, and in the absence of persuasive authority that FBI agents should have given the notification in spite of the waiver, I believe that this case is governed by a plethora of decisions which have admitted confessions made under similar circumstances. These decisions have concentrated on the issue of whether the defendant’s waiver was voluntary and knowing, and all have admitted confessions made without notice to counsel because the defendant was notified of his rights and deliberately waived them.³ These cases plainly indicate that it makes no difference whether the police or the defendant initiate the interviews, or how often or long the defendant is questioned, for the main concern is the validity of his waiver. On the strength of these decisions, I find that defendant Durham’s contention that he was entitled to have his counsel notified of the interviews — despite his waiver of representation and notification — is without merit.

II.

Judge Pell accepts the fact that Durham could waive his right to have his counsel notified of the interviews, but holds that it was necessary for the trial court to conduct a hearing on the deliberateness and understanding of Durham’s waiver.

Such a hearing was unnecessary, for Durham’s confession was given in 1961, when the law governing the elicitation and admissibility of confessions was quite different from what it is today. Therefore, United States v. Springer, 460 F.2d 1344 (7th Cir. 1972), is not determinative of the conditions for admissibility, for Springer was based upon Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which was decided five years after Durham’s confession was given, and which has not been applied retroactively. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Instead, .the crucial determination governing the admissibility of a pr e-Miranda confession is whether the will of the defendant had been overborne so that his confession was not a free or voluntary act. Procunier v. Atchley, 400 U.S. 446, 453, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971). Under this standard, the fact that the defendant was not represented by counsel when he gave his confession is not in itself sufficient proof of coercion to make a confession inadmissible, for the lack of representation by counsel goes only to the weight to be given other evidence of actual coercion. Procunier v. Atchley, 400 U.S. 446, 453, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971), United States ex rel. Lathan v. Deegan, 450 F.2d 181, 184 (2d Cir. 1971), cert. denied, 405 U.S. 1071, 92 S.Ct. 1520, 31 L.Ed.2d 803 (1972). Therefore, even if Durham could prove that his waiver was not knowing and voluntary, his failure to point to any other proof of coercion would make his confession admissible under pr e-Miranda law. Since Durham has suggested, and the record indicates, no indication of FBI coercion in obtaining the confession, the trial court was not required to conduct a sua sponte hearing on its admissibility. United States ex rel. Lewis v. Pate, 445 F.2d 506, 508 (7th Cir. 1971). If there were such evidence of coercion tp require a hearing on the voluntariness of the confession, the trial court might then consider the validity of Durham’s waiver of notice to his counsel in order to assess how much weight the lack of counsel gives to the other evidence of coercion. But in the absence of such other evidence, such a consideration of the validity of the waiver is irrelevant.

Since the majority vote of this panel requires that this ease be remanded for further proceedings of some kind, I am forced to agree with Judge Pell that a hearing on the voluntariness of Durham’s confession can be held independent of a new trial. Jackson v. Denno, 378 U.S. 368, 394, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). However, my understanding of the law governing the admissibility of Durham’s 1961 confession leads me to doubt that this hearing will find that the confession was involuntary and that a new trial is necessary.

III.

I find that, given the admissibility of the confession, the other assignments of error raised by Durham do not constitute an abuse of discretion by the trial judge in admitting evidence or rise to the level of prejudicial error.

1 . Prior to and during the trial, Durham’s only argument concerning his purported confession was that he had never confessed anything to the FBI agents. He did not raise the issues of voluntariness and his right to have counsel present until after the trial. In conducting our review of this case, we must view all evidence in the light most favorable to the government and assume that Durham in fact made the confession. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

2 . In Massiah, law enforcement officers indirectly questioned the defendant without warning that they wore doing so — here Durham had no doubt that FBI agents were questioning him. In McLeod, police failed to toll defendant of his right to get an attorney — here FBI agents notified Durham of this right.

3 . United States v. Springer, 460 F.2d at 1351-1352 (FBI persuaded defendant to sign confession shortly after arraignment at which counsel had been appointed), United States v. Brown, 459 F.2d 339, 323 (5th Cir. 1971) (agents talked defendant into giving statement immediately after her attorney advised her to remain silent), United States v. Crisp, 435 F.2d at 358-359 (defendant asked to speak to agents and gave statement; agents failed to notify court-appointed counsel before going to jail for interview), United States v. Dowells, 415 F.2d 801 (9th Cir. 1969) (defendant gave statement after questioning about robbery without notice to counsel appointed at arraignment 11 days previously for another robbery), Arrington v. Maxwell, 409 F.2d 849, 853 (6th Cir.), cert. denied, 396 U.S. 944, 90 S.Ct. 381, 24 L.Ed.2d 245 (1969) (defendant gave statement after being told that his counsel could be called), United States v. Fellabaum, 408 F.2d 220, 225 (7th Cir.), cert. denied, Pyne v. United States, 396 U.S. 818, 90 S.Ct. 55, 24 L.Ed.2d 69 (1969) (counsel not notified of three questioning sessions at which defendant gave statements), Reinke v. United States, 405 F.2d 228, 229-230 (9th Cir. 3968) (defendant volunteered statement after preliminary hearing at which counsel had been appointed for him), Wilson v. United States, 398 F.2d 331, 333 (5th Cir. 3968), cert. denied, 393 U.S. 1069, 89 S.Ct. 727, 21 L.Ed.2d 712 (1969) (FBI interrogated defendant that it knew was represented by counsel and took statement), United States v. Hale, 397 F.2d 427, 430-431 (7th Cir. 1968), cert. denied, 393 U.S. 1067, 89 S.Ct. 723, 21 L.Ed.2d 710 (1969) (appointed counsel not told of time at which FBI was to interrogate his client), Coughlan v. United States, 391 F.2d 371, 372 (9th Cir.), cert. denied, 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968) (police did not tell court-appointed counsel that they were to interrogate defendant), United States v. Smith, 379 F.2d at 633 (defendant gave statement to FBI agents in automobile; interrogation stopped after FBI telephoned defendant’s court-appointed counsel), Davidson v. United States, 371 F.2d 994 (10th Cir. 1966) (defendant gave statement to FBI while held on state charge and represented by local counsel).