United States v. Billy Hall , 905 F.2d 959 ( 1990 )

GEORGE C. SMITH, District Judge.

Appellant Billy Hall appeals his conviction for mailing a threatening letter to the President and Vice President of the United States in violation of 18 U.S.C. §§ 871 and 872. Specifically, in June of 1988, Billy Hall was serving a sentence in the state penitentiary at Eddyville, Kentucky. Hall, along with other individuals, escaped from the penitentiary, was captured, brought back and arraigned in August of 1988. Hall was brought before the state court in the Lyon Circuit and a lawyer was appointed for him. Hall spoke with that attorney concerning his escape charges.

On October 28, 1988, a threatening letter signed by Hall and two other individuals¹ was sent to then President Ronald Reagan. The return address found upon the envelope was that of the Eddyville penitentiary. The White House mail room referred the letter to the Intelligence Division of the Secret Service in Washington, D.C. The Intelligence Division sent copies of the letter and envelope to the Louisville field office for further investigation. Special Agents Decicco and James Parker went to the state penitentiary and interviewed the subjects whose signatures appeared on the letter.

The agents interviewed Dennis McAn-inch who, after waiving his Miranda rights, admitted he signed the letter, helped to draft it, and addressed the envelope. He further stated that given the opportunity he would kill the President or Vice President.

Decicco and Parker also interviewed Hall. According to Decicco, he read Hall his Miranda rights. Thereafter, Hall stated that he personally had written the letter. He stated that he meant what he had said and that he would kill the President and Vice President if he had the opportunity. Hall also gave handwriting samples. The trial in this matter commenced on April 12, 1989.

The first witness at the trial was Agent Decicco. Decicco testified regarding the interview with McAninch. After finishing his testimony regarding McAninch, Decicco testified that he next talked to Billy Hall. Hall immediately objected to Decicco testifying to any statements, admissions, or evidence given by Hall during the interview.

A conference outside of the hearing of the jury ensued where it was explained to the court that Billy Hall had escaped from the penitentiary in Eddyville, Kentucky, but had been captured and returned in July. It was further explained that a lawyer had been appointed for Billy Hall on those charges. Hall specifically objected to any statements made during the interview with Decicco and Parker, because he already had been appointed counsel on the state charge. Therefore any statements he gave during that interview had to be suppressed. It is not in dispute that Hall was not questioned about the escape charge during the interview on November 8, 1988. The only questioning that took place was that regarding the threatening letter sent from the penitentiary. The district court conducted a hearing whereby it was to be determined: (1) whether Hall had been given his Miranda rights; and (2) whether or not he knowingly and voluntarily waived those rights.

Decicco indicated that he did not know when he interviewed Billy Hall that a lawyer had been appointed for him. Decicco testified that he advised Hall of his Miranda rights to have an attorney, and the possibility that one could be appointed for him. He indicated that while the Secret Service did have written waiver forms, he did not have Hall or the other two individuals sign the forms. However, according to Decicco, Hall spoke freely and voluntarily without being coerced in any way by either agent.

Agent Parker testified that he questioned Hall about his role regarding the letter and he too read to Hall his Miranda rights. He explained to Hall that he had a right to an attorney, and that if he could not afford one, an attorney would be appointed for him. Parker indicated that Hall did not request counsel. Parker did however testify that within Hall’s report was information that an attorney had been appointed for Hall on the escape charge.

Hall testified before the Court and explained his escape charge. He indicated that he had been appointed an attorney for the escape charge and that he had talked to his attorney in regard to that charge. Hall indicated that he had talked to counsel regarding the escape charge before being interviewed by these Agents. He also indicated that the agents did not ask him whether he had an attorney and had they asked, he would have availed himself of an attorney. Hall later testified, however, that the Agents told him he could have an attorney. Hall indicated that he made a request. According to Hall, Decicco and Parker ignored his request. Thereafter, Hall answered a couple of the agent’s questions and indicated that he might know something about the letter. He gave a handwriting sample.

The trial court found that Hall waived his Miranda rights. The court noted that at the time of the interrogation, counsel had been appointed for Hall. Nevertheless, the statements of Hall were admitted into evidence and the jury returned a verdict of guilty. The district court sentenced Hall to sixty (60) months to be served consecutively to any term of imprisonment currently being served. Defendant was also given three years supervised release.

Hall appeals arguing that his statements made to Agents Decicco and Parker were in violation of Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), which also has recently been followed in United States v. Wolf, 879 F.2d 1320 (6th Cir.1989). This appeal likewise centers around whether the admission of defendant’s statement could invoke harmless error. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). For the foregoing reasons, I find that Hall’s statements were not in violation of Roberson. Since Roberson has not been invoked, a waiver could be obtained. The District Court properly found that defendant Hall voluntarily waived his Miranda rights, and appellant has not brought that issue to this appeal. Therefore, neither the issue of whether a valid waiver was obtained nor harmless error needs to be addressed. However, it should be noted that if this Court were to address the issue of harmless error, I would have found that Hall’s statements would not have been harmless error as found in Chapman. The Court AFFIRMS the District Court.

In Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981), the Supreme Court held:

[An] accused, ..., having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.

In Arizona v. Roberson, the Supreme Court held that this prophylactic rule applies when police-initiated interrogation following a suspect’s request for counsel occurs in the context of an unrelated criminal investigation. 486 U.S. at 682, 108 S.Ct. at 2098. Defendant Hall contends that the circumstances which surround his admission following questioning by Decieco and Parker are identical to that of Roberson² and therefore, his conviction was in violation of his fifth amendment right against self-incrimination. On this I cannot agree.

The Supreme Court in Roberson explained that the Edwards rule protects against the inherently compelling pressures of custodial interrogation suspects who feel incapable of undergoing such questioning without the advice of counsel. A presumption is created that any subsequent waiver of the right to counsel at the authorities behest was coercive and not purely voluntary. Moreover, it provides clear and unequivocal guidelines that inform the police and prosecutors with specificity what they may do in conducting custodial interrogation, and that inform the courts under what circumstances statements obtained during such interrogation are not admissible. 486 U.S. at 680-682, 108 S.Ct. at 2097-2098.

Roberson was concerned with coercive custodial interrogation by authorities where the suspect has not had the ability to speak to counsel, because, “to a suspect who has indicated his inability to cope with the pressures of custodial interrogation by requesting counsel, any further interrogation without counsel having been provided will surely exacerbate whatever compulsion to speak the suspect may be feeling.” 486 U.S. at 686, 108 S.Ct. at 2100. Thus, the Supreme Court disagreed with the contention that a fresh set of Miranda warnings would “reassure” a suspect who had- been denied counsel would have his rights remain untrammeled, “especially in a case such as, this, in which a period of three days elapsed between the unsatisfied request for counsel and the interrogation about a second offense ...” Id. Significant within the Edwards extension in Roberson was the individual being interrogated had not yet had the opportunity to speak to counsel and remained in custody. A short period of three days for which the individual remained in custody would not alleviate the coercive pressure surrounding a subsequent interrogation about an unrelated crime, because the accused had not yet had the advice and consultation of a lawyer. The presumption which is created in Roberson is that until the individual is afforded the opportunity to speak to counsel, any subsequent Miranda warning is insufficient to overcome the pressures created by the custodial nature of the situation. That along with the brief period of time which elapsed between the original request and the subsequent unrelated interrogation should not relieve the authorities of the obligation to refrain from questioning until counsel has been presented and the suspect has had the ability to confer with his or her attorney. Those facts and concerns do not appear herein.

Nor do these facts support the holding that this Court recently pronounced in United States v. Wolf, 879 F.2d 1320 (6th Cir.1989). In Wolf, the defendant was brought before a Kentucky District Court on state charges of theft and criminal possession of a forged instrument. At her arraignment, Wolf requested an attorney. Thereafter she was returned to the Women’s Jail. Later that same day and before she had spoken to her requested counsel, two agents of the United States Bureau of Alcohol, Tobacco, and Firearms appeared at the Women’s Jail to question the defendant. These agents read the Miranda warnings to her, obtained a waiver, and she subsequently confessed her involvement in a scheme to kill the wife of her former boyfriend. This Court found that Roberson protected Wolf from this second interrogation, even though the defendant was being questioned for two unrelated state and federal charges.

Quoting directly from the Wolf decision, we clearly stated:

[W]e find that on the facts of this case Roberson was violated: Wolf invoked her fifth amendment right to counsel at the arraignment; she remained in custody and did not consult with her attorney from that time until after she gave her statement; and the ATF agents, not Wolf, initiated the interrogation that resulted in the statement. Id. at 1322.

Defendant Wolf requested counsel, was returned to jail, and was interrogated the same day about an unrelated federal investigation. Wolf had not spoken to counsel. Therefore, the concerns which were espoused in Roberson clearly appeared within Wolf Miranda waivers under those circumstances have presumptively been held to be coercive, and not to be given effect. However, neither Wolf nor Roberson has been violated within this case.

Defendant Hall was captured and returned to the Eddyville penitentiary in August of 1988. At his arraignment, an attorney was appointed for the defendant. Hall spoke to his attorney concerning those charges. Three months later, a threatening letter was sent from the penitentiary to the President of the United States. Two Secret Service Agents questioned Hall about his involvement. The District Court held a hearing and specifically found that Hall waived his Miranda protection. Hall admits he answered a few questions and may have known something about the letter. Hall remained in jail, but he was there because he was already serving a prior sentence. Hall was no stranger to the state penitentiary. In fact, Hall was not “in custody” as that term has been used in the context of Edwards and Roberson. One could readily argue that Hall was more comfortable within the surroundings in which he was interrogated than the two Secret Service agents.

Hall would have this Court set aside the District Court’s finding of guilty because he had an attorney for the state escape charges. Hall would have us ignore his waiver of his Miranda protection. Taking Hall’s argument to its logical conclusion, because he had an appointed attorney on an unrelated state charge, any future waiver of his Miranda warnings would be ineffective. That would be true, even though Hall had spoken to his appointed counsel regarding those charges. Hall would have this Court adopt an approach, that once a defendant has had counsel for any other criminal activity, whether or not he was ever formally charged or convicted, the authorities were precluded from speaking to him about new activity without his counsel’s presence. This would be the case, even if Hall waived all of his rights to counsel and self-incrimination and even if he thereafter voluntarily confessed to his involvement. In essence, Hall would have us adopt a rule which would forever deny the use of a proper Miranda warning and subsequent waiver on any charge or interrogation, after an individual had an attorney. That would be so no matter what the time frame was between the activities or whether or not the individual had ever spoken to his counsel. This clearly is not the intent of the Edwards protection espoused in Roberson. This Court cannot extend the protection that far. To extend the protection as Appellant wishes would create a situation not contemplated above.

Hall invoked his fifth amendment right to counsel at his arraignment on the escape charges. The only reference within the record to establish that an attorney was appointed for Hall following his arraignment comes in transcript evidence of Hall himself held at his suppression hearing. Joint App. at 16. It is not clear what right Hall was asserting at his arraignment. However, this Court in Wolf held that where the record does not indicate that the defendant intended to limit their request for counsel to only that of the sixth amendment, any doubt as to what right was invoked had to be resolved in favor of the defendant. Id. at 1323, citing Cervi v. Kemp, 855 F.2d 702, 706-707 (11th Cir.1988) (applying Edwards and holding that request for counsel made at arraignment is an assertion of fifth amendment right to counsel); United States v. Fairman, 813 F.2d 117 (7th Cir.1987) (invocation of right to counsel at arraignment triggers Edwards). Therefore, Hall’s fifth amendment right against self-incrimination was protected as to the underlying state charge of escape. But as has been established, neither Edwards nor Roberson can be interpreted within this appeal to grant to Hall such a blanket protection continuing ad infinitum. The facts and circumstances that were the subject of those cases clearly do not appear herein. To have Hall’s waiver of his Miranda protection overturned on these facts and circumstances would not only do injustice to the principles that are being protected in Edwards and Roberson, but would also remove an individual’s ability to waive his fifth amendment privilege merely because at some past point he had counsel. And that would be the case even though the individual had fully conferred with his counsel regarding that previous activity. This Court cannot reach that result. Accordingly, the judgment of the District Court is AFFIRMED.

1 . Charged in the indictment were Dennis O’Neil McAninch and Thomas Edward Davidson, Jr. who are not a part of this appeal.

2 . In Roberson, the defendant was arrested at the scene of a burglary, advised of his Miranda rights, and immediately indicated that he "wanted a lawyer before answering any questions.” Three days later while still in custody and still without talking to a lawyer, a different officer, unaware that respondent had earlier requested counsel who had not yet been provided, advised him of his rights and interrogated him about a 'different burglary. He obtained an incriminating statement about that crime.