United States v. Anthony Caldwell

or stat- common Minnesota’s under existed America, Appellee, bribery. of alleged STATES UNITED utory law appeals Minnesota by the rulings These v . court’s observa- district support court CALDWELL, Anthony Appellant. under of action allowing a cause tion that No. 90-2857. disruption cause a “serious RICO F.Supp. at policy.” 734 regulatory state Appeals, Court 2.n. 887-88 Eighth Circuit. the circumstances note that alsoWe April 1991. Submitted from are different and LILCO both Taffet 16, 1992. Decided Jan. case, agency, the state In this here. those con- rate is 1992. Feb. Rehearing far as the least so Denied already the 83-600 cerned, reviewed has This “tainted.” it was

rate and determined rate decrease prospective

resulted in Thus, telephone customers. a refund through the damages only available are they ac- process, administrative

state received.

tually been

III. argues that

Finally, the H.J. class dismissing pendent state its erred

court court dismissed The district claims.

law claims state law H.J. class’s de- already had state courts

the Minnesota F.Supp. at claims.

cided the the state class asserts

The H.J. binding this is not proceeding from the the decision

court because not the Appeals, Minne-

Minnesota Supreme Court.

sota argument misses class’s

The H.J. the Minnesota Court decision of

mark. The two final as between these Appeals is relitigation in precludes

parties and Stores, Dept. See, e.g., Federated

action. Moitie,

Inc. (1981)(“A final

2424, 2428, L.Ed.2d 103 pre- of an action the merits

judgment on is- relitigating ... from parties

cludes the have been raised or could that were

sues action”). by the district the dismissal affirm

We

court. Sullivan, Louis, Mo.,

James E. St. ar- gued, appellant. for Rogers, Louis, Edward Mo., J. St. ar- gued, appellee. for LAY,* Before Judge, Chief FRIEDMAN,** Judge, Senior Circuit GIBSON, JOHN R. Judge. Circuit GIBSON, JOHN R. Judge. Circuit Anthony appeals Caldwell from his con- viction conspiracy possess cocaine base with the intent distribute viola- tion of 21 841(a)(1) U.S.C. and 846 §§ (1988). The appeal sole on issue whether the district court1 in denying erred Cald- well’s motion to suppress statements made to Detective Albert because of warnings. Miranda2 argues that the failure of Up- Detective church to tell him had a consult an attorney with before and during invalidated provided by Upchurch. We affirm the con- viction. January

On Barbara Johnson opened package apart- delivered to the grandmother, ment of her Gustine Sumner. package delivered Federal Ex- press and addressed “Bob Johnson” at Sumner’s opened address. Johnson package apartment in Sumner’s and saw a plastic bag clear powder with white chunk. package upstairs Johnson took the apartment to her neighbor, and called a Vivian Jones. Jones lived in the same four- * Gunn, George HONORABLE P. DONALD LAY was Chief 1. The Honorable United Judge Appeals of the United States Court of for Judge District Eastern District of Mis- Eighth Circuit at time this case was souri. January submitted and took status senior opinion before the was filed. Arizona, 2. Miranda v. ** FRIEDMAN, The HONORABLE DANIEL M. Judge Senior United States Circuit for the Fed- Circuit, sitting by designation. eral cooperative interest to be as be in his best Jones and Johnson.

family flat as Sumner Upchurch. possible with where John- apartment, to Johnson’s came Both women package. showed her son arrived and Wash- Detective package contained suspected that kitchen where Cald- ington led him to the eighteen year old her drugs. Jones called at the Upchurch looked was seated. well Caldwell, apart- over to the son, Anthony to contain crack which he believed package, package Caldwell the She showed ment. Upchurch Washington introduced cocaine. expecting it. he was and asked whether immedi- Upchurch Detective to Caldwell. not, he and then first said was Caldwell rights to re- ately advised Caldwell of his expecting pack- he was admitted that counsel, telling and to Caldwell: main silent apartment. left the age. then Caldwell Any- remain silent. got the You to seek advice decided you say Jones and Johnson and can be used thing will police Washington, a St. Louis you from Mike in the court of law. You you Wash- attorney. and a friend of Johnson’s. If officer have a for an apartment, one, ington came Johnson’s afford one will be can’t suspected and package, you. at the looked drugs. Washington Because

it contained Upchurch then asked Caldwell whether necessary expertise he had the did not feel rights. shook he understood his Caldwell matter, investigate drug he called indicating Up- his head he understood. post and re- police department command church that Caldwell was “scared testified Upchurch Albert quested that Detective hysterical looking.” paced Jones and apartment. come to kitchen, Upchurch testi- and out of the and “hysteri- and fied that she was “excited” Washington was Johnson's While Upchurch and moved to the at her cal.” Caldwell apartment, Caldwell called Jones Upchurch again asked living room where apartment, which was on the same level you your “You sure understood talked to Caldwell on the Caldwell: Johnson’s. Jones Up- said that he did. persuade rights?” him to re- Caldwell telephone and tried to hap- Washington then asked Caldwell what apartment. then church turn to the repeated the same sto- apartment spoke pened, and and Caldwell to Jones’s with went Washington guy named ry he told telephone. Caldwell was Caldwell on —that “Ray” agreed pay him him to use his crying, Washington $500 and told upset and cocaine delivered. At that apart- return to address to have that he should Johnson’s out, placed ar- point, Upchurch and Caldwell under straighten this matter ment to rest, return, talking his mother and “proba- he could and after with that if he did not room, looking took him to the of trouble.” bly be a lot De- office of the St. Louis Police narcotics apart- returned Johnson’s Caldwell There, again partment. advised Caldwell, Washington spoke to who ment. rights him if he Caldwell of his and asked “scared, very frightened, ex- [and] said that understood Caldwell tremely nervous.” Caldwell’s voice did, questions, and answer to Cald- quivering. than usual and Jones was lower given he had repeated well the statements pacing visibly upset and around the also sign refused to a written before. Caldwell Washington did not advise apartment. statement. rights. Washing- his Miranda Caldwell of essentially as recited package, The facts above are ton asked Caldwell about report recommen- couple magistrate’s in the told him that a weeks hearing. earlier, “Ray” following suppression had met a man named dation Caldwell, No. 90-12- accept him if he would promised who $500 (E.D.Mo. CR(6), slip op. admit- at 2-7 June package at his address. Caldwell magistrate recommended that package ted that he knew made in Johnson’s Washington told Caldwell Caldwell’s statements contain cocaine. Washington Up- apartment from to both that he had called Detective suppressed post it church because Caldwell police command and that would voluntarily intelligently waive his in custody at the time he confessed to state, upset due to his mental his Upchurch, therefore, no Miranda condition, upset age mother’s and his and warnings required. inexperience. Id. at 9-10. The matter, As a threshold we must also held that given Caldwell’sstatement first consider whether Caldwell inwas cus suppressed station should be be- tody purposes for Miranda when he con cause the interroga- circumstances of the fessed to Upchurch. tion were such that he was not shown to required are only when a is in intelligently waived his to re- custody and is about to be interrogated. main silent and to counsel. Innis, Rhode Island v. adopted The district court the statement 1682, 1689, 64 L.Ed.2d 297 concerning of facts suppress the motion to A is considered “in custody” for the statements and the recommendation purposes Miranda either when he has been that Washington Caldwell’s statements to formally arrested and not free to leave the suppressed. Caldwell, be location, or when person a reasonable 90-12-CR(6), slip op. (E.D.Mo. No. at 1-2 suspect’s the position would have con 2, 1990). Aug. court, however, The district sidered his freedom of movement re rejected magistrate’s recommendation degree strained to a usually that is associ that Upchurch Caldwell’s statements to be ated with a formal arrest. Berkemer v. suppressed, reasoning that ad- McCarty, 420, 440, vised Caldwell three times of his constitu- (1984); 82 L.Ed.2d 317 United States tional and asked him twice if he Goudreau, (8th Cir. understood those Id. at 1-2. The court ruled that the circumstances did not “ ‘rise to the compulsion level of or coer- The magistrate concluded that Caldwell speak cion to ... within Miranda’s con- was “in custody” for purposes Miranda cerns.’ 2 (quoting Id. at Illinois v. Per- when Washington Officer began first to kins, question him in apartment. Johnson’s Slip (1990)). (June op. 13, 1990). at 7-8 The district juryA convicted conspiring Caldwell of court did not decide whether Caldwell was possess to cocaine with intent to distribute. custody purposes.4 for Miranda Caldwell was sentenced to a mandatory 121 We need not decide whether Cald sentence, month as the amount of cocaine custody well was in purposes for Miranda grams was 197.2 pure crack cocaine 85% when Upchurch. he first confessed to $20,000-24,000. with a wholesale value of government does not address Caldwell’s 2D1.1(c)(5). U.S.S.G. § during statement made appeal, argues On Caldwell that the dis- station where it is uncontradicted failing trict court erred in suppress to arrest, that Caldwell was under formal statements made to because therefore, custody pur for Miranda Caldwell inadequately advised of his poses. light the confusion created rights.3 Miranda specifically Caldwell ar- ruling, district court’s we assume for gues although Upchurch told him that purposes appeal of this that Caldwell was he had the an attorney, to he failed to in custody at the time he returned to John tell him when accrued or apartment. son’s had the to consult with an interrogation. before and considering Before merits of Cald- government responds that Caldwell was provided well’s claim that he was with inad- appeal implicitly agreed magistrate’s did not from the dis- with the conclu- ruling suppressing trict court Caldwell’s state- custody sion that Caldwell was in for Miranda Washington. ment made to purposes apart- when he returned to Johnson’s Washington. Slip op. (Aug. ment to talk to at 1 adopted magistrate’s 4. The district court rec- 2, 1990). ommendation that Caldwell’s statements and, thus, Washington suppressed may reversal of lowing court’s district must first warnings, we equate Miranda sup- judge’s recommendation pre- magistrate properly Caldwell whether decide of Mi- to Upchurch, statements press adequacy Caldwell’s the issue served argue the district argu- before oral failed appeal. At randa warnings for sup- should be statements brought to our attention court parties ment did pressed that Caldwell first time for of Mi- adequacy warnings. objection raise his magistrate warnings randa before adequately raised if Caldwell Even counsel court. Caldwell’s or district judge suppress objection his motion argument at oral initially admitted he failed renew judge, counsel did court-appointed court, and the district objection before adequacy of issue of the specific raise the preserve therefore, properly below, the courts See appeal.7 issue raise the later, that counsel stated Cir.1984) Udey, study suppress. Our in a motion issue objec preserve their (defendants failed to that Cald- file reveals of the district made of statements to the introduction tion the Mi- general issue as well raised on the officers based to law enforcement suppress randa in a motion to warnings), Miranda give to officers’ failure failed magistrate judge,5 but the filed with 1017, rt. 472 U.S. ce inade- why warnings were the explain (1985). Accordingly, 3477, 613 87 L.Ed.2d Up- complain that specifically or quate complaint about may we review his of failed to inform Caldwell church adequacy of Miranda warnings ap the during interroga- or counsel before Id. See Fed. error. peal only plain Anthony Cald- Motion of Defendant tion. 52(b). R.Crim.P. of Alleged Suppress Statements well explained has Supreme Court The Incorporated Memorandum and Defendant Caldwell, “authorizes doctrine plain-error that the United States v. 1, at of Law only ‘par to correct Appeals of 5, 1990). the 90-12-CR(6) (E.D.Mo. Courts Feb. No. ‘seri ticularly egregious errors' ... that judge nor the dis- magistrate the Neither fairness, integrity public or issue,6 ously the and fol- affect addressed this trict court 5. Caldwell warned that both 384 L.Ed.2d ments during trict court observed vised considered nation issue of dant tends magistrate judge times rights," Caldwell however, decisions. issue is shown al at The rights to an 9, suppress and that Caldwell apprised and informed of his [Caldwell] that the lower courts consideration should be advised dissent or adequate of his Miranda slip op. 694] rights." flies in waived ^[436] required judge filed For filed whether magistrate judge (1966).” "Detective attorney argues defendant of his to the example, a motion to suppressed of his Miranda 443 observed that with the Miranda Id. arguing only under 1, their Caldwell [86 face that Caldwell raised "was interrogation and that rights. S.Ct. magistrate judge, and warnings in a motion analysis Miranda again because "At no Similarly, suppress and district language “Upchurch three The This 1602, 1611, rights,” slip op. that his state- "following advised constitutional constitution- properly self-incrimi- dissent of whether was Defen- adequately argument, with the Arizona, the dis- of judge both time con- ad- 16 7.The The version of contrary. fendant three warnings. three recitations whether this issue search warrant Miranda dant filed id. at motion to result reached issue of served mann, court. cluded that intelligently Caldwell's question mental As we have age presented magistrate judge dissent 886, 887 state, Caldwell a motion to because Neumann motion suppress. the Caldwell The issue. The adequacy F.2d 880 and the waive his inexperience. his mother’s times told states stated, events_” here. magistrate but did not was defective on of his constitutional or ruled on Caldwell failed to received was is not inconsistent that United States district court denied suppress of Miranda rejected suppress arguing that the (8th Cir.1989) did not magistrate judge Detective properly Neumann, magistrate upset judge Slip op. Id. at consider adequate Miranda due to both because voluntarily and condition, warnings advised Upchurch his two 2. arguments, at rights, de- judge is place the grounds. with the he con- 9. The granted v. Neu district to the decide decide defen upset ob- ” curiam), reputation judicial proceedings.’ argued Unit the defendant that his Mi Young, ed States v. 470 U.S. randa 1038, 1046, (1985)(quot 84 L.Ed.2d 1 S.Ct. they explicitly failed to inform him of his ing Frady, United States v. court-appointed counsel before 1584, 1592, 71 L.Ed.2d 816 questioning. Supreme Court observed (1982) Atkinson, and United States v. 297 that the defendant had been advised of his 391, 392, 80 L.Ed. to talk before and (1936)). plain error rule is to be during questioning, and to have an attor “ sparingly,’ only ‘used when there ney appointed if he could not afford one. has been a fundamental error so basic and Id. at Distinguish S.Ct. at 2810. prejudicial justice could not have been ing those expressly cases which linked the done, or deprives when the error the ac appointed counsel to a future time right. cused of a Young, fundamental police interrogation, the Court held after (quoting U.S. at 105 S.Ct. at 1046 Fra warning complied with Miranda. 1592); dy, U.S. at 102 S.Ct. at 360-62, Id. at 101 S.Ct. at 2809-11. The Garcia, United States v. 897 F.2d reasoned that the (7th Cir.1990). question suggest “any limitation on the to the given adequate whether Caldwell was Mi presence counsel different question randa of law that from the clearly conveyed rights we review de novo. United States v. Con to a law nell, (9th Cir.1989).8 yer general,” including to a lawyer before questioning. requires cus 360-61, 2809-10. In Duck todial must be in Eagan, worth v. formed, among things, other that he has (1989), Supreme presence attorney, of an and that if he cannot held attorney informing suspect afford an Court that that an appointed one will be for him any before attorney appointed would be him “if questioning if he desires. Miranda v. Ari you go and when to court” did not render zona, 436, 444, 384 U.S. 86 S.Ct. warnings the Miranda 16 L.Ed.2d 694 Supreme Court suspect the already had been told that he interpreting cases Miranda have never di had the attorney to an rectly suspect considered whether a must during questioning, and he had this to explicitly be warned that he has the attorney an if even he could not afford one. present to have counsel during interroga Id. S.Ct. at 2879-80. ex Duckworth tion, Nevertheless, several decisions are plained Prysock that did not hold that a Supreme instructive. re warning necessarily when defective C., affirmed Miranda in Fare v. Michael warning appointment the the linked of an 442 U.S. 99 S.Ct. attorney point to a future in time. Id. at (1979), dicta, and in stated: Instead, explained 2880-81. the Court that The rule the court established Mi- pointed the in Prysock vice out was the randa is clear. In order to be able to failure “apprise to the accused of his use during statements obtained custodial present have an if he chose to accused, interrogation of the the State questions.” answer Id. must warn the accused to such questioning of his ... to have coun- Supreme Court “has never indicated sel, appointed, present retained or during ‘rigidity’ that the of Miranda extends to interrogation. precise warnings formulation of the Id. at 99 S.Ct. at 2568. given a Prysock, criminal defendant.” U.S. at at 2809. Prysock, 453 U.S. ‘Miranda California (1981) 101 S.Ct. (per L.Ed.2d 696 itself that no talismanic incanta- indicate[s] findings underlying Connell, adequacy 8. The factual view. 869 F.2d at 1351. challenge subject clearly are erroneous re- adequate when satisfy its strictures.” required tion [is] to a right to talk had that he “an informed Miranda recognized that Prysock Id. questioning, including advice before safeguards lawyer for procedural nounced during questioning, warnings ... or present him now familiar ‘the wish, at you “if Prysock, be equivalent.’ one their that Innis, 446 at (quoting 109 S.Ct. go to court.” you 101 S.Ct. at if and when 1687) (emphasis makes Duckworth supplied Prysock). in this warning that apparent It is need not ... courts “[Reviewing clear that inadequacy suffer from does not case if constru warnings as examine Prysock, in both Duckworth discussed an terms of defining the ing a will or appointed coun- right to namely, linking the “The in at 2880. easement." interroga- after point in time sel to a future warnings rea simply whether quiry is deficiency is only claimed tion. When suspect] ‘convefy] sonably [a teaching Duck- generality, of (quoting Id. required by Miranda.” construing a will we are worth that 453 U.S. at Prysock, convinc- easement defining the terms Up- is that only complaint warning hold the cannot us that we es him of warn specifically church failed plain error. case this amounts in- during the right to counsel before strictly re Moreover, has this court however, did, gen- terrogation. ad explicitly a defendant quired that had erally warn attorney before right to an vised immediately That attorney. Indeed, questioning.9 warnings that Cald- Upchurch’s followed (8th Cir.), Swenson, Evans v. and that remain silent right to had the well him. be used he said could anything (1972), affirmed denial warning, it deficiency in the If there awas petition, corpus warning, not habeas ambiguity the defendant’s in the warnings provided com holding misled Caldwell warning actively right to In that false limitation suggesting plied with Miranda. the defendant case, police counsel. officer advised telephone make a he had given in both It is true attorney. Id. at to an right call and the specifically stated and Prysock Duckworth de informing the that We 295. concluded attorney right to an had a that telephone call he could make fendant that defi- but claimed questioning, before he that telling defendant right before that rejected Prysock in was ciency attorney, suggested an right to had informed explicitly suspect attorney an could call defendant attorney appointed before an right to have therefore, in interrogation, and 361, before S.Ct. at 101 453 questioning. U.S. Id. complied with Miranda. Duckworth, held the substance the Court 2810. In have, when of the fifth amendment in violation cured 9. Several other decisions circuits from warn defendant however, agents failed to customs right implied that a must defendant held or during ques attorney presence of to right to an attor- specifically be warned See, an attor tioning he not afford that if could police questioning. during ney before v. 530, appointed); States States, ney, United one would 389 F.2d 533 e.g., (5th Cir.1968) (court v. United Windsor Cir.1973) 1091, (7th Fowler, 1092-93 admitting F.2d a defen- 476 erred postal (warnings given when were the confes- when dant's evidence confession had tell he inspector to defendant failed failed which sion followed answering questions attorney right before right to an to counsel he had a tell the defendant against anything could be used and that said v. United during interrogation); Chambers 669, Anthon, him); 673 648 F.2d 455, (5th Cir.1968) (same); States States, United F.2d 456 391 Cir.1981) (warnings inadequate when 610, (10th (9th Noti, F.2d 615 731 agents defen drug failed warn warnings inadequate enforcement Cir.1984) (police Miranda during present right to have counsel dant of they defendant when failed advise stop questioning), cert. right questioning denied, questioning). See police right to counsel 1039, 1164, 172, L.Ed.2d States, S.Ct. 71 U.S. 102 454 F.2d 392 v. United also Groshart (1982). Cir.1968) (defendant's se- 320 (9th statement 174-78

503 296. Dakota v. Long, right South 465 F.2d the to remain silent explana and an Cf. (8th Cir.1972)(defendant’s 70 tion of the risk in remaining silent, inadequate when defendant not advised of would persons “be taken most to refer right presence attorney right of an contemplated to the interrogation.” Id. denied, appointed attorney); cert. 409 Lamia, Accord United 429 F.2d 35 L.Ed.2d 263 373, (2d Cir.), denied, cert. (1973).10 (1970); S.Ct. 27 L.Ed.2d 146 Cusumano, United States v. 429 F.2d panel A recently this court declined to (2d Cir.), denied, cert. precise question consider the before this (1970); S.Ct. 27 L.Ed.2d 61 Wood, court in Butzin v. 886 F.2d 1016 — Burns, (8th Cir.1989), denied, 1066, 1074-75 States v. U.S. —, (2d cert. Cir.1982), (1990). Nevertheless, Beam, Judge in concurring opinion, warning provid indicated that the Similarly, the Seventh Circuit United ed, which was almost identical to the one Adams, (7th States v. 484 F.2d 357 Cir.

here, complied with Miranda. Id. at 1019. 1973), held that the warnings that the de dissented, Judge Lay opining Chief fendant silent, had the to remain warning was defective because it failed to counsel, and court-appointed coun specifically inform the defendant that he sel adequate. Id. at 361-62. The had a attorney to consult with an court held that the specifically failure to interrogated. Id. 1019- inform the defendant of to an attorney during fatal, questioning was not agents provided Narcotics almost especially when the provided the warning same in Sweeney defendant warnings “on the street” and not at the States, v. United Cir. “ police station. Id. at 362. ‘It is unrealis 1969), as did in this case. Id. at expect tic to degree the same formality agents 124. In Sweeney, told the defen respect question with to waiver and “on the silent, dant that he had the to remain street” inas the station-house.’ Id. at anything he said could be used Cusumano, (quoting 429 F.2d at him, that he attorney, was entitled to an Although could, arguably and that if he could not afford an should, explicit advising have been more appointed. one would be Agents Id. also Caldwell of attorney, we told the defendant that he could use the believe the decisions cited above further telephone. court held that al support our conclusion though “warning explicit was not as provided might been,” plain does not rise to agents it the level of adequately Here, Upchurch, least, error.11 very communicated the substance at the of the Mi randa advised Id. The court Caldwell that he had the reasoned that the reference to right right to counsel remain silent and the attorney. to an immediately following warning as Upchurch anything warned Caldwell that suggests 10. appointed. dissent that this court settled the to have counsel Id. We do not read presented Long, issue here in and that we have Long settling as the issue before us. overridden the "clear statement” of the law. however, warning provided Long, dif- record, 11. We also note that on the state of this fered Long from the one here. The entirely it is not certain that Caldwell was not failed to inform the defendant that he had a right informed of his to an before and most, right Long counsel. "At police his at the station. say anything told he didn’t have to and that he Gilmore, testimony partner of Detective a lawyer.” could have a 465 F.2d at 70. The Upchurch’s, suggests that Caldwell was read pointed court out that there was no further his full Miranda at that time. Gil- stop talking any admonishment that he could at present during Up- more testified that he was time, that he had the to have counsel questioning, church’s and that "read present, appoint- and that he could have a court rights” police Caldwell his from the station ed counsel if he could not afford one. Id. The waiver form. major thrust of the court’s decision dealt with Long the failure to inform that he had the 504 Fenton, 474 U.S. Miller v. also Id. See him, and that against used could be he said 115, L.Ed.2d 405 104, 88 106 S.Ct. attorney one afford an if he could ad- question of the (1985) (“[T]he ultimate also ad appointed. treatment merits missibility to a of a confession had the that he Caldwell vised federal Long, requiring plenary legal inquiry 465 attorney, as a court-appointed cf. review”). 68, link Caldwell’s F.2d at point in time future attorney to a case, court found the district In this Prysock, 453 questioning. See police after coercion, and compulsion or was no there 2810; Windsor, at at U.S. cf. regarding findings specific factual made no Moreover, general F.2d at 533. motion to denying In waiver. an had warning that Caldwell however, did, district court suppress, immediately followed attorney, which Filiberto, F.Supp. States v. cite United remain warning had aff'd, (E.D.Pa.1989), 915 F.2d into misled Caldwell silent, not have could — (3d Cir.1990), not be attorney could believing that (1991). —, L.Ed.2d 697 111 S.Ct. during questioning.12 present Cf. Filiberto, that the defen held court (2d Fox, Cir. rights a valid dant made waiver Sweeney, 1968); see here, when, responded the defendant the district argues also Caldwell invoking rights to questioning without admitting his confessions erred court silent, and no evidence or to remain counsel his constitutional did not waive Thus, we Id. existed. coercion intelli- knowingly, and voluntarily, rights the district only conclude that can is says that “coercion gently. Caldwell a valid waiver made Caldwell believed sus- of the perspective from the determined his constitutional Innis, 446 U.S. pect,” tran carefully reviewed the We suspect's mental condi- 1689, and that evidentiary hearing and trial of the scripts determining factor significant tion is Up- undisputed that case. It in this confession. of a the voluntariness rights and church advised Caldwell waives Whether defendant rights those him if he understood asked in has two distinct constitutional Tague v. Loui two occasions. at least Cf. “First, relinquishment of quiries. siana, voluntary in the have been right must curiam). (1980) There is (per of a free and product that it was sense inexperienced, that Caldwell was no doubt intimidation, than choice rather deliberate confessed to nervous when he upset, and Bur deception.” Moran v. coercion, or to no conduct Upchurch. points bine, 475 U.S. however, which part police, on the “Second, 89 L.Ed.2d Moran, See to the level of rises coercion. made with full must have been waiver (“the 106 S.Ct. at nature of the of both the awareness any suggestion is devoid of record consequences of being abandoned psychological physical police resorted it.” to abandon the decision statements”); Colora pressure to elicit the 157, 170, 107 S.Ct. Connelly, do v. factu the district court’s We review (1986) (“Miranda 515, 523, 93 L.Ed.2d 473 whether a defendant findings concerning

al protects defendants clearly errone under waived Bartlett, leading to surrender coercion them ous standard. Amendment; goes it (8th Cir.1988). protected by the Fifth We that.”) Fare, 442 U.S. at than no further determination the ultimate review (no improper 726-27, at 2572-73 occurred, however, as a waiver whether tactics). Nor does Caldwell subject to de novo review. question of law however, general involve the same it of cases which The dissent cites number 12. contrary opinion provided here. suggests to Caldwell are cases, warnings in the cited of the court. None incapable relating of under- argue adequacy that he was of the is simply standing warnings provided part question him or the of the fundamental by magistrate addressed consequences of his decision to waive his and the dis Moran, trict court: knowingly whether Caldwell rights. 475 U.S. at intelligently waived his Accordingly, looking at the totali- fifth amend rights. ment The held circumstances and the entire ty of the knowingly Caldwell had not conduct, Elstad, intelligent police Oregon v. course of ly waived rights; his fifth amendment 1285, 1297, district court did not reach this issue since (1985), L.Ed.2d 222 we conclude that the it found interroga there was no custodial government proving met its burden of Arizona, tion and rights, waived his constitutional (1966), correctly and that the district court denied apply. majority disagrees The with the suppress. motion to findings district court’s of custodial interro determining The us is issue before gation, but then fails to address the waiver requirements whether of Miranda though issue even it upon was focused recognize were observed this case. We evidentiary hearing and is now raised penalty extreme harshness of the which appeal. application statutory results from of the The issue of clearly waiver is raised mandatory year minimum ten sentence. appellant’s brief.1 To discuss waiver should not cause The harsh sentence us to waiver, knowing terms of a one must know question decide the in a manner intelligently what exist and then required by reading other than our of the knowingly them. Up- waive Detective applicable cases. church neither informed Caldwell of his full affirm the conviction. We rights, nor asked him whether waived magistrate’s findings The LAY, Judge, dissenting. Chief should be sustained. respectfully I must dissent. Perhaps majority’s holding that de- majority opinion long- fails to follow privilege fendant’s fifth amendment standing precedents of this court and con- against self-incrimination is not violated trolling Supreme precedent. Equally majority’s arises from the erroneous re- alarming majority’s is failure ad- plain opinion liance on the error rule. The dress the central issue raised and its facile plain acknowledges the error rule should plain making reliance on the error rule sparingly only used and then to correct analysis. regard Judge In this its Gibson’s “egregious affecting errors” of law opinion procedural fails to follow rules of integrity proceedings. fairness and of the ignores controlling this circuit and en seemingly puts gloss This discussion on a opinion. banc violation of the defendant’s fifth amend- readily par-

It to all privilege against will be discernable ment self-incrimination majority that the to address the ties fails into the cliché of technical or harmless er- legal majority says basic issue raised. The ror. The Miranda rule is fundamental adequacy warning. unknowing and often protection the sole issue is the of the contrary. suspect. The record is to the It a rule which the issue innocent Filiberto, Appellant’s brief states: U.S. v. 82 L.Ed. 1461 (E.D.Pa.1989). light F.Supp. Magistrate correctly concluded that the warnings, inadequacies of the Miranda heavy its failed to meet burden to Defendant, psy- condition of the mental prove voluntarily, Defendant know- officers, chological ploys utilized ingly intelligently waived his to re- any prior history, criminal and the the lack of main silent and to counsel. "The court must sophistication part eigh- on the lack of totality look to the of the circumstances to defendant, injustice year teen old manifest suspect’s determine if the conduct manifests a are intelligent will result if the verdict and conviction knowing relinquishment right privilege.” not reversed. abandonment of a known or 458, 1019, Zerbst, Appellant Johnson v. 304 U.S. 58 S.Ct. Brief for warning equivalence into the of recognize Miranda to has continued Supreme Court four-part part. Each of the any other protect individual enforce to cautionary rule has been Clearly, warnings to a every citizen. relate different Every Supreme Court deci- protect an here. set Miranda to violated concern out has reinforced to date right against from sion amendment accused’s fifth statements ob- “to use principle that To inform someone self-incrimination. interrogation of the during custodial tained not tell right remain silent does has the accused, the accused must warn State To warn right a to counsel. him he has of his ... questioning prior to such counsel he has a to have someone counsel, appointed, retained or have the accused he appointed does not inform Mi- interrogation.” Fare v. present during question- counsel before can consult with 2560, 717, 707, C., 99 S.Ct. 442 U.S. chael interro- present ing and have at counsel (1979). 2568, 61 L.Ed.2d cited gation. See cases infra. 1989, Court, as re as Supreme late analysis majority must One assume v. Ea in Duckworth principle this affirmed directly relat- is as to the Miranda 2875, 204, 195, 492 U.S. gan, analysis plain error. If court’s ed to the There can be not, such dis- why has the court belabored that Cald present little doubt case dubious, Although it is somewhat cussion? no well, with youth eighteen-year-old an holding that surely, hope I the court is not not informed experience, prior criminal warnings a matter of law the Miranda as lawyer right to with a had a consult that he adequate. If that the intent given were lawyer a and to have questioning clearly opinion, then majority of the clearly He during questioning. present holding a would be court has Such erred. knowing intelligent and not make an could holdings of the Su- contrary specific rights of which he was waiver of Court, court and the overwhelm- preme Miranda, stated the Court aware. “[i]f the court of of this ing majority appeals without continues Duckworth, See, at country. e.g., 492 U.S. attorney and a statement is presence of an (holding that Mi- 109 S.Ct. at 2880 taken, govern heavy rests on the a burden informed, “the requires be randa the defendant ment to demonstrate here, an attor- has the priv knowingly intelligently waived during questioning, and ney before and and his ilege against self-incrimination appointed for an would be appointed counsel.” to retained one.”); Prysock, if not afford him he could 86 S.Ct. at 384 U.S. (holding sev administered Unlike the given adequate un- majority, the upon eral cases relied the defendant “was told der Miranda since by Detective statement read to Caldwell lawyer present a to have opportuni him the not offer did interrogation, to and telephone call which the ty to make from a lawyer appointed at cost if he have a no lawyer be inferred. right to could consult one.”); could not afford (8th Swenson, 455 F.2d 291 Evans v. Cf (9th Cir.1990) Bland, 908 F.2d Cir.), (warnings given were held (1972); Sweeney v. 33 L.Ed.2d they did not advise defendant since (9th Cir.1969). States, attorney present dur- to have provide an inference clearly It Snaer, 758 F.2d ing questioning); Guam counsel be consulted before could Cir.1984) (warning which thing It is one present during questioning. right to consult informed defendant need not be say particular that a ritual lawyer lawyer right to and his only an warn equivalent followed min- during questioning “meets the present See, e.g., ing need be made. California Constitution,” of the requirements imum Prysock, curiam). though “it not be amiss for Guam (1981) (per 69 L.Ed.2d clearly to more However, part of the revise its form warn equates case one no

507 right questioning.”), to consult with counsel before lice failed to inform him that he right had a denied, 828, t. 474 U.S. 106 present to have counsel during his interro cer S.Ct. 90, (1985); L.Ed.2d 74 88 United gation); States, v. Atwell United 398 F.2d Noti, 610, (9th 731 States v. F.2d 614-615 (5th Cir.1968) 507 (advising defendant that Cir.1984) (warning held inadequate to be he was entitled to with an attorney, consult inform where it failed to the defendant that appointed, retained or “at anytime” did not right during question he had a to counsel comply with Miranda directive that an in ing questioning); as well United dividual held for questioning must be clear Contreras, (11th v. 667 F.2d States 976 ly informed that he has right to consult Cir.) (warning held to be sufficient since it counsel during before and questioning); right informed the defendant to con States, Groshart 172, v. United 392 F.2d sult with attorney questioning, (9th Cir.1968) 175 (warning administered attorney present during to have an ques agents customs held to be constitutionally tioning, appointed), and to have counsel inadequate since it failed to warn defen denied, 849, 109, cert. 459 U.S. 74 right dant of presence of an (1982); L.Ed.2d 97 United States v. An attorney during questioning and right thon, 669, (10th Cir.1981) 648 F.2d 673 attorney appointed have an if he could (warnings held since the one); not afford Chambers v. United defendant right was not that his advised to States, (5th Cir.1968)(incrimi 391 F.2d 455 encompassed counsel to have nating statements held to be inadmissable present during any counsel questioning and because defendant was not advised that he attorney appointed to have an if was presence entitled to the of counsel one), denied, he could not afford cert. 454 during interrogation); Windsor v. 1164, States, (5th United 389 F.2d 533 Cir. (1982); Stewart, United v. States 576 F.2d 1968) (same); Fendley States, v. United (5th Cir.1978)(same); 54 (5th Cir.1967) 384 F.2d (per curiam) 923 Fowler, (7th 1093 Cir. (warnings held to be they since insufficient 1973) (warnings held to be insufficient be of the appoint advise they cause failed to warn the defendant present during ed counsel interroga that he had the to counsel before tion). answering questions); Beto, Sanchez v. (5th Cir.1972)(confession F.2d 467 515 urges The court analysis that its must be inadmissable since defendant was not ad plain made under the error doctrine be- vised that he had a to have counsel objection cause no was made at the trial. present during interrogation), This thesis is based on the conclusion that 36 L.Ed.2d (1) Caldwell did not address this issue in his (1973); Rizzo, F.2d 71 (2) did, suppress motion to if then (7th Cir.1969)(had defendant raised his ob he effectively waived issue not re- jection prior appeal, his incriminating newing objection at trial. With all due statements would suppressed have been respect, premise ignores the first the clear warning given since the failed to record, premise ignores second inform of attorney to have an clear law. cert, present during any interrogation), de The record shows nied, raised the issue of the sufficiency (1970); Gilpin v. United in his motion States, suppress. Cir.1969) motion “apprised reads that Caldwell (warning held to since be insufficient it did not indicate that informed of his defendant had the constitutional present to have counsel self-incrimination as required interrogation); Caparossa Arizona, under Miranda v. (5th Cir.1969)(defendant Government Canal Zone, adequately F.2d 956 U.S. ad L.Ed.2d ^[436] 694] (1966).” (Def.’s Mot. [1611, Sup- po- vised of his when press constitutional The

knowing waiver trate’s tive statements.2 given to Officer ment made to circumstances did opinion states In its order soning is suppress based L.Ed.2d 243] Miranda’s cion to in The [officer “[t]he “rise to the district court suppress Caldwell’s Upchurch, [292, findings magistrate’s prophylactic the statements speak,” Illinios his assessment Upchurch’s confusing. 299], finds denying Caldwell’s Upchurch. level of The (1990), found only as to Washington. concerns.” by Caldwell disagreed with that these the district district government findings interrogation] do and I no compulsion or find it elicited of the The district initial so “are not with 2394, 2397, intelligent court observes: Perkins, circumstances second The which court’s very any of the totality Moreover, statement motion by Detec- appealed. majority magis- state- clear. court were ^[496] coer [110 rea- and not Denying in CR(6) L.Ed.2d 166] Miranda.’ U.S. compulsory self-incrimination [is] to [a fendant’s are the Constitution fendant’s the made to Detective made sures ed.... denied. granted. IT IS FURTHER ORDERED IT IS FURTHER (E.D.Pa.1989). ‘not themselves 2at [195, suspect] to insure v. The Officer Filiberto, motion motion part Def.’s Mot. 203], 109 S.Ct. (E.D.Mo. Duckworth inquiry is (1989). reasonably ‘conveyfy] his Washington be and but No. 90-12- Caldwell, rights Upchurch Accordingly, Aug. suppress suppress ORDERED rights protected [are] See, also, the F.Supp. simply whether 2875, 2880, v. 2, 1990) (Ord. Suppress). Eagan, instead required statements statements and it is that de- that de- protect- ^[492] mea- 486- [106 [sic] it is by by Upchurch asking any questions, asked him magistrate found: 2. The his he still understood defendant whether quickly involun- returned After defendant hesitatingly that he rights. said Defendant tarily apartment, the circumstances repeated them. Defendant did understand was apartment defendant were such that Washington. story had told he Washington im- environment. in a custodial mediately questioned voluntarily and intelli- not did Defendant about defendant rights apartment, be- gently his waive openly was package. mother Defendant’s very state at the time cause mental disapproved Everyone and very upset. knew very upset with upset, remained his mother package. involvement with admitted situation, age experi- and his the whole apartment until in the remained Defendant been sufficient shown to have ence were not Officer Upchurch arrived. Because Det. Washington investigation pressures of with the to deal not advise defendant did neighbors di- and the his mother rights, defendant the statements Washington cooperate Officer rection from Upchurch Det. arrived before made him Although he was asked Upchurch. Det. with Miranda, supra, suppressed. should be rights, there was understood his he whether expressly asked was then that he no evidence government next issue is whether previ- He had waive them. whether would proving heavy that defen- burden of bore its incriminating and he given ously statements Upchurch pre- to Det. dant's statements repeat compelled the same may have felt knowing voluntary, ceded intelligent defendant’s presence of the narcotics statements in rights to remain si- waiver Miranda, detective. supra, 384 U.S. lent and to counsel. police station in- Louisiana, 1628; The circumstances Tague v. Upchurch such 652, 653, terrogation by remained 470-71, Det. Butler, have intelli- not shown (1980); that defendant North Carolina silent and gently to remain waived again Although advised of he was undersigned con- to counsel. L.Ed.2d he under- and stated that its his Miranda not sustain that the cludes heavy them, expressly not he was asked stood case. in this burden Further, he would waive them. whether arrived and determined After he closely followed interview station and before he package cocaine contained pressure their apartment interviews and any questions, Det. asked defendant he was asked packed When circumstances. properly him of his Miranda advised give state- a written only whether he understood nodded that Defendant ment, angrily that he would said defendant was so the defendant’s mother them. Because say more. he would no into the upset, took defendant the detective 8-10). (Mag. Rec. at Again, Ord. living to be interviewed. room Notwithstanding clarity, its the district The clearly waiver issue subsumes the findings clearly are court’s erroneous. The question of warning. To the fact district overlooked that when urge otherwise exalts form over sub- house, came back technicality reality over com- stance— —and inspected package had and had deter- pletely eviscerates an individual’s fifth mined it contained crack cocaine. Caldwell privilege amendment by judicial oversight. Washington by was told that it would be in majority opinion states even if Cald cooperative his best interest to be with well raised the issue in the sup motion to Upchurch. question There was no the in- press, he preserve nevertheless did not vestigation had focused on Caldwell and issue appeal for because he failed to renew interrogation that his was custodial in na- objection to the statements at trial. accepted ture. The district court mag- Thus, majority analysis bottoms its on finding istrate’s that the earlier statement plain error rule because of the defen Washington to Officer had to sup- dant’s failure to objection renew his pressed. This was based on a custodial admission of the statement at trial. The government examination. The majority relies on United States v. Udey, cross-appeal Thus, finding. this (8th Cir.1984), 748 F.2d 1231 to hold that is bound the district court’s object the failure to at trial pre does not finding Washington’s ruling serve the suppress. on the motion to If custodial. Caldwell was under cus- Udey clearly does not hold this. I authored tody Washington him, when examined it is Udey opinion. Nothing in Udey can be hardly urge subsequent reasonable to read to mean this. In Udey there was no questioning by Upchurch was not custodial. motion suppress objection no later Upchurch certainly interroga- viewed his at trial. circumstances, Under those custodial; tion as attempted give court held preserved. the issue was not Caldwell the warnings. The ma- majority does not address United jority disagreed with the district court and Neumann, States v. 887 F.2d 880 Cir. persuade finds “the facts us that Caldwell 1989) (en banc), ” Judge case which in custody purposes.... for Miranda joined, Gibson where we held that once a (Op. 499). motion suppress is made it is not neces I recite the above it demon- sary to renew such a motion trial. strates that both the magistrate and the Relying Supreme precedent, Neu- district judge recognized that within held as mann follows: adequacy issue of waiver the of warn- By trial, motion before a criminal de- ings specifically addressed Cald- permitted any fendant is to raise objec- suppress. well’s motion to There is no “capable tion of determination without question that the district court understood issue,” general the trial of the but mo- this issue when it wrote in its order “[t]he suppress tions to evidence must be inquiry simply whether the rea- prior 12(b). raised to trial. Fed.R.Crim.P. sonably ‘eonvey[y] suspect] [sic] [a note, addition, We that such a man- required by Miranda.’ Cald- datory pretrial suppress, motion to (quoting Duckworth, well at 2 492 U.S. at grounds on constitutional in a filed 109 S.Ct. at This court should case, criminal does not ordi- if grudgingly not so technically assess narily have by way to be renewed the record especially below. This is true objection at trial. The failure to raise suppress, when the motion to as well as the objection must, Rule, which under the magistrate’s reviews, and district court’s trial, be made effects a waiver of explicitly recognizes being the issue raised. 12(f). the objection. Fed.R.Crim.P. The fact that the sustained the added). (emphasis Id. at 885 grounds motion on that Caldwell did not knowingly Thus, and voluntarily I respectfully analysis waive his submit that does negate petitioner fact that plain this case under the error rule is adequacy addressed the warning. wrong. The defendant did raise the ade- year prison faces a ten He now judgment. his mo- warning in quacy of If judgment. for immature he needed sentence This is all suppress. tion out, his will be objec- life is carried Notwithstanding absence this sentence do. clearly pre- It is trial, family is devastated. issue was His ruined. tion at the Congress by its consideration. me to our believe served for difficult penalty condones mandatory minimum Cald- authority holds that Overwhelming lad of young to a punitive such sanction This warnings. proper given well was Congress knows the if eighteen. I wonder Judge in 1972. this issue court settled laws. A civi- by such injustice it creates then wrote: Ross protest. President should lized society is the substance true it it is While grant clemen- should States of the United form, impor that is warnings, not the as a circuit twenty-five years cy. my Swenson, F.2d 455 tant, Evans v. such I never encountered judge Cir.1972); Tucker v. (8th United 293 gross injustice justice. This miscarriage of Cir.), (8th States, F.2d why denial of emphasizes further rights amendment man’s fifth young warnings given (1967), the L.Ed.2d require a conviction. should reversal meaningful to the complete and must be Circuit, by the Ninth As stated accused. dissent. respectfully I Rhay, Smith inadequate where warnings are (1969), had the accused, although advised he attorney, not advised presence of right to the “he had the that, if he could attorney and one, lawyer could be

afford any question him represent ing." EDMUNDSON, Appellant, Randy T. Long, 465 Dakota v. South Cir.1972). Warden, TURNER, United C.A. how to understand for me It is difficult Prisoners, Federal Medical Center for override, banc without en majority can Missouri; Parole Springfield, U.S. law. clear statement approval, this Commission, Appellees. mag- experienced as did the I find No. 91-1280WM. evidentiary hearing, (who held the istrate able to and was assess heard the witnesses Appeals, States Court officers) credibility of Eighth Circuit. voluntarily, defendant did July 1991. Submitted intelligently waive knowingly and and to have silent counsel remain Decided Jan. questioning present before Rehearing En Banc Rehearing and officers.3 20, 1992. Denied Feb. commentary. This case I add one other eighteen-year- of an the conviction involves expe- any prior criminal youth,

old without

rience, made a serious mistake who 652, 652-53, S.Ct. [100 follows: concluded 3. The Butler, (1980); North Carolina 622] L.Ed.2d government its whether the bore issue is [The] proving [99 heavy that defendant’s burden of undersigned preceded con- Det. 286] L.Ed.2d statements knowing voluntary, intelli- not sustain its defendant's cludes to remain silent gent heavy waiver case. burden in this Miranda, supra, at 475 to counsel. (Mag. Ord. Rec. Louisiana, 1628]; Tague v. [86

Case Details

Case Name: United States v. Anthony Caldwell

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Feb 18, 1992

Citation: 954 F.2d 496

Docket Number: 90-2857

Court Abbreviation: 8th Cir.