*1 455 givе-and-take F.2d from the negotia- 533 different Gogarty, government plea cited the in bargaining tion common between (CA2 93 coopеr appellant’s failure prosecution the and the . . question the defense even involve It does not ate, Here, afield. gоvern- is far both the [Citation omitted]. prosecution. of vindictive allegation long and the since com- ment had a formal entered into There, defendant the pleted negotiations plea agreement. on the in prosecution with the agreement written Mоreover, completed part each side had its specific prom a number of made by the bargain government of the time the holding in Go of the The substance ises. indictment, secured the the basis of this party who is that a defendant garty is prosecution. government Inasmuch as the may not prosecution agreement a deferred sought unilaterally vindictively pun- govern the agreement аgainst the invoke legal ish the of his assertion agreement. the he has violated ment if rights, support Bordenkircher rather is the there breached The defendant than a bar to the reversal of this conviction. and had no contractual agreement himself Gogаrty, prosecuted. to be right not CONCLUSION agree cut evidence that the clear there was and the indict- The case must be reversеd violated on a number been ment had ment dismissed. Here, agree there no formal is occasions. matter, the that For ment. IT IS SO ORDERED. fully cоoperate in accord he did
claims understanding agree the ance with of] [his government claims
ment, the refusing ap agreement in the
violated testify at a grand jury and the
pear before fact, were a If, these conditions in
trial. agreement, government the
part of the comply appellant’s refusal to
advised yet January and in the month of with them America, UNITED STATES of this evi until October. When nothing did Plaintiff-Appellee, with fact that dence is combined time dis expressed at no gоvernment WILSON, Edward Blunt appellant’s cooperation satisfaction Defendant-Appellant. clear January October], it becomes [from relying the breach upon that it was felony justify agreement any such Court of United States We hold against appellаnt. indictment overcome failed to government that the so manifest on of vindictiveness appearance record. the face of any com- government receive
Nor can deci- Supreme the recent Court
fort - Hayes, U.S. Bordenkircher sion in (1978).
-, L.Ed.2d 98 S.Ct. in-
There, carefully contrasted the Court a failure to charges resulting from
creased bargaining agreement plea
reach a response to a defendant’s initiated legal The Court
assertion pen- imposition of a “unilateral
held that chosen to a defendant who had
alty upon ‘very . . . legal
exercise [was]
incriminating given statements by Wilson he in custody. was Thereafter the Aрpellant motion was denied. now chal- lenges this suppress refusal to the state- We ments. find no error in the admission of the statements and therefore affirm. I.
FACTS. appellant’s After arrest a Washington- forgery state charge, he was advised of his Miranda again and was advised after his at police arrival station. At the station, questioning the forgery be- gan. The drift of questioning changed appellаnt when was shown photograph of robbery a bank suspect, at point he became agitated. somewhat After further questioning attempts and to calm the appel- lant, an agent F.B.I. who had been investi- gating the bank robbery was called in. Af- agent ter again rеad appellant his rights, appellant asserted his right to re- main silent and his to counsel. Inter- rogation promptly ceased аnd Wilson was jailed booked and on the state forgery charge. later,
Less than one hour
following the
identification of the person in the robbery
photograph as the appellant,
police
con-
cluded that they had sufficient evidence to
сharge appellant
state
under
law with the
Hillier, II, Seattle, Wash.,
Thomas W.
for
robbery.
charge
The
was added
po-
to the
defendant-appellant.
lice blotter.
procedure
Standard
of Wash-
police
ington
calls for one of
arresting
Seattle,
Jack Meyerson,
Atty.,
Asst. U. S.
notify
officers to
a defendant of new
Wash.,
plaintiff-appellee.
charges brought against him. The officеr
who went to inform Wilson testified that he
did not intend to initiate further question-
ing
toor
confront Wilson with the new
Upon
evidence.
being informed оf the new
Before
SNEED
however,
charge,
Wilson stated that he
KENNEDY,
Judges.
wanted to talk to someone. The officer
you
want to talk tо me?” After
SNEED,
Judge:
did,
said he
he was taken to
Appellant
Blunt
interrogation
Edward
Wilson was con- an
room where he
again
was
robbery
victed of
bank
violation of 18
rights.
informed
There followed a
2113(a)
(d).
U.S.C.
Prior to and dur-
of incriminating
§
number
statements which
ing
court,
the trial
to the
evidеnce
connected
the robbery.
Ap-
received
suppress
on a motion to
certain
pellant
statement,
made а sworn
be-
ued
sort after
questioning
informed of
again
fore
rights.
course the trial
was en-
In due
asserted
Miranda
robbery
titled to be informed
charge of bank
describ-
additional
the federal
against him
charge brought
and there is no
occurred.
ed above
proсedure
point
on this
claim that
*3
improper
any way designed
II.
or
inwas
or coerce him.
badger
to
ANALYSIS.
expressed his
speak.
own initiative
desire to
is wheth
appeal
The issue raised
Rodriquez-Gastelum applies a fortiori. The
rights to re
er, having once аsserted
judge
concluding
trial
right
the assistance
and receive
silent
main
appellant’s actions
free and
constituted^
have
be
to
counsel,
may
found
Wilson
pre-
he had
intelligent waiver of
so, the incrimina
If
waived
viously asserted.
ad
properly
were
he made
ting statements
AFFIRMED.
af
must be
conviction
and Wilson’s
mitted
must
over
the conviction
be
If not
firmed.
Judge,
concur-
turned.
ring specially:
controlled
this case are
The facts of
I adhere to the views that
I expressed
decision in United States
en banc
our recеnt
dissenting
Rodriquez-
in United
v.
States
(9th
waiving to desire to have expressed his
initially We held that counsel.
assistance waiv- constituted a “That’s fine.”
statement following context: made in the
er when
to talk
him if he wanted
I
NATIONAL LABOR RELATIONS
said,
had,
“Okay,
and he
what he
BOARD, Petitioner,
said,
I
attorney.”
an
And
okay, but with
now without
to me
you want
talk
said,
And
any attorney?”
WESTERN
LABORATORY,
CLINICAL
fine.”
“That’s
INC., Respondеnt.
little sense to
that “It makes
We reasoned
counsel,
that,
requested
say
having
once
States Court of
never,
actually
has
until he
may
prisoner
change his
counsel,
mind
talked
an
without
speak
decide
precluded might contribute
of circumstances judgment.” intelligent exercise omitted). (footnote
Id. in ei
In contrast situations Rodriquez-Gastelum or United
ther (9th Cir., Flores-Calvillo, F.2d 512 no contin- in this case reveal the facts