United States v. James W. Melanson

COFFIN, Judge, suppressed. Before PELL* the district court Chief CAMPBELL, and Judges. Circuit Melanson, by The was attended and a attor- Cyr, agent Ready CAMPBELL, LEVIN H. Circuit Judge. defendant had ney, James Dineen. Neither The appeals from the dis- hearing opened with them. The granting trict court’s order the motion of swearing to the Ready signing with suppress James Melanson to statements Cyr the defendants. complaints against that he made in the course of an initial sworn, were then informed of and Melanson Magistrate. before a United States charges against them and warned that silent, to remain you “each of I. say can be used anything you You also have a February you. On James Melanson Cyr attorney, and Edwina afford an the Court agents you arrested if can’t Alcohol, first you.” the Bureau of Fire- will When appoint Tobacco and one they lawyers, Cyr if could afford According government, arms. asked not and Melanson leading events their were as answered that she could up to arrest Cyr The asked day, nothing. follows: Earlier in the Melanson and said let me talk moment ... and Cyr public parking arrived at a lot in a car “sit down for a for a moment.”2 to Mr. Nelson Joseph Cooper. owned and driven one [Melanson] * $5,000 imprisoned Circuit, sitting designation. more than or fined not Of the Seventh years, or both. more than three “Whoever, any such in the commission provides: § 1. U.S.C. weapon, deadly dangerous or acts uses assaults, resists, forcibly oppos- “Whoever $10,000 im- be fined not more than shall es, intimidates, impedes, or interferes with years, prisoned or both.” not more than ten any person designated in section 1114 of hearing, persisted Throughout some engaged there title while in or on account of the name, ap- duties, which performance confusion over of his official shall govern- parently was Nelson. had said The magistrate (Unintelligible)—fired asked Melanson a series shot hood.-— of questions about his age, address and me. care who it don’t was. I’m family, each of which Melanson answered. out of I am not getting hell there. name, When attorney’s asked for his getting (Un- Melan- shot at. That bullet went — replied, son intelligible) —. “DEFENDANT NELSON “THE COURT: Excuse me. Put [Melanson]: one,

I don’t have get morning sir. I have to case on again Monday one. for after we get some details on this fellow. Is your “THE You lawyer COURT: have enough to the details? Monday get time file appearance appearance, his or her hire, Yes, whoever on you or before “MR. Monday of DINEEN: Your Honor. We this week. will try bаckground and obtain more in- formation on him on the other names and Yes,

“DEFENDANT sir. NELSON: try and run the other names. you, Marshal, “THE COURT: And will I figure gets “THE he COURT: once please be sure he has a chance to call his lawyer, lawyer can talk to his he more attorney.” can here freely maybe than he Turning to the attorney, the lawyer can us out some help better with asked, magistrate any problem there “[W]as bailable, they information. If are I don’t with this arrest?” briefly, Dineen related not, want If they to hold them. are the government’s version facts un- will hold It is as as that. simple them. derlying charges against Melanson and I’ll be certainly “MR. DINEEN: avail- Cyr. magistrate The then broke off the able to talk attorney. to his inquiry and returned to questioning Melan- right. “THE All set it COURT: Let’s son background. response, about his Me- morning. Monday down for 9:30 on This lanson occupation stаted his and denied your is for review bail. Be sure law- ever having been arrested before. The yer here, Nelson. Mr. magistrate turned back to the got “DEFENDANT I to NELSON: attorney to who ask the driver the car get lawyer, going a now I am to be but had been. He was informed Dineen that here, staying going I don’t know if I am Cyr had driven at urging. The get to one now. magistrate then asked for a recommenda- Well, you “THE COURT: said— tion on Melanson’s bail. Dineen brought can’t get “DEFENDANT NELSON: I out name, the confusion over Melanson’s out get to one. arrest, referred to the circumstances of the claimed Melanson’s employer you “THE Don’t have some- described COURT: his attendance at “sporadic” body work as in mind? $50,000.

requested that bail be set at I “DEFENDANT don’t NELSON: lawyers. even know any point, At this said to Me- you “THE Do want me to COURT: lanson, right, Nelson, “All Mr. or whatever you? apрoint lawyer your speak name is. You have a “DEFENDANT Please. NELSON: your you behalf. What do say?” fol- lowing one, then colloquy ensued: appoint “THE I will but COURT: you. I You him. If going pay am to tell I “DEFENDANT NELSON: him, pay just said you you can afford say nothing going say, now. I was I him, you are you pay could afford so didn’t run try nothing. him over pay him. going to have to my

When I seen getting friend stuffed in My a trunk two boss guys, not dressed in uni- “DEFENDANT NELSON: throwing form. He don’t know what badge did flash a at me. seems to be —I He did not He he is point gun trying pull. me. was on n early questioned identity pro- confirmed until later. ment ceedings, but Melanson’s true name was not I tell Well, usually does what ing at her. She appoint “THE let me COURT: me, so—as can to do. ain’t scared of capable her She

lawyer I think had in they case, goes, as the one light don’t far your you handle and then if work, I because heard can car even Mоnday morning, you him didn’t want after other one cops say the time one get your lawyer, own but for me. they when were behind lawyer you I each of being, want a COURT:, Monday morning. I don’t people here on the blue you Did see ‍​​​‌‌‌‌​‌‌​‌‌‌‌​​‌​​​​‌​‌​​​‌‌​‌‌​​‌‌​​​​‌​‌‌‌‌​‍“THE next happen going know what’s on the car? light here, ease, but on this one Cyr; Edwina No, there “DEFENDANT NELSON: appoint lawyer temporarily will just light. There wasn’t blue least. fact had one a matter of one—as minute, Mr. right, “All seated for a supplied.] headlight.” [Emphasis Nelson; get will see if we can and we outburst, magis- After Melanson’s be can be lawyer phone to sure he the time with went on for a short his trate lawyer can be here. We want a that terminating the Cyr, of before interview here.” the morning’s proceeding. Although record ques- Turning magistrate score, to the Cyr, appel- this Melanson’s unclear on her as he had Melanson. He tioned much of the end this counsel us late advise address, occupation, asked about age, her morning hearing Friday, on the of Febru- family requested and arrest record. He $50,000 set bail magistrate the ary “give here. background Dineen to me the Thereafter, following Melanson. of responded by describing Dineen certain magis- morning, the Monday February During preceding events the the arrest. trate, promised, as he conducted bail had “No, no, narrative, Cyr interjected Dineen’s by attended Melanson and hearing review no,” remonstrated, “You magistrate and His bail was newly counsel. appointed going your speak. chance to are have $25,000. Cyr apparently had reduced said Just a moment.” Thereafter more was $10,000 of without released on bail been Dineen, аgent as to by Ready and also hearing on the surety after a resumed bail Finally, had occurred. allegedly what February 8. Friday, of afternoon she right” “All and magistrate Cyr, said suppress moved to subsequently Melanson immediately into her own version. launched hearing. made at the bail the statements he agents said she had not known the She motion, but granted court The district being police, thought Cooper was had (italicized) as to statements those kidnapped, driven off when Melanson had expressed an had government which “Put car in Get out yelled reverse. chief. using Any in its case in intention here,” police lights and see the blue did not admissibility of other Me- ruling on the later, At until, told to over. pull she was at the bail was lanson’s remarks Melanson, room, seated point, this in the did grounds offered two The court deferred. somеthing magistrate’s atten- attract First, relying on Simmons its decision. tion; following immediate- colloquy States, United which uttered ly during occurred Melanson “in (1968), held that 19 L.Ed.2d 1247 presently the remarks issue. expla- full cautions and explicit absence What “THE COURT: is it? magistrate possible of the by the nation my was “DEFENDANT NELSON: It making statements incriminating effect was and went fault she took off back. put hearing,” Melanson was the bail her throat. jumping more or less down constitu- choice between impermissible an Nelson “THE This is Mr. reasonably COURT: might rights: tional “he speaking for the record. that, to remain si- had he chosen believed impeding his lent, impairing NELSON: She

“DEFENDANT of excessive counsel, to be free taking rights to and speed and nothing to do with “that Second, court felt it, I was scream- bail.” off. I told to do her proved not aby prepon- to make a required statement and that ha[d] derance of the evidence the defendant any statement made by may him be used understood his to have rep- counsel him ... to a [and] resent him in relation to bail as at as well preliminary addition, examination.”4 trial and remain silent until his had a right under bail attorney present.” It therefore found eighth amendment as implemented by Fed. that Melanson had not waived his fifth and 5(c), R.Crim.P. Fed.R.Crim.P. and 18 sixth amendment Each finding, the U.S.C. § concluded, court suppression required easy While it is catalog thus to Melan- statements sought son’s it is rights, easy give not so sub- introduce. these rights practical stance to in the con- text of an initial Two of the ob- II. jects of initial are appointing Cases like place court at the conflu- needed, bail; if setting and to ence of guaranteed several rights to one do this the nеeds some freedom situation the Constitution to question the suspect though even statute. previous Arrested the day, Indeed, yet present. the suspect’s Melanson came magistrate pur- before the sixth amendment right to counsel de- suant to 5(a), requires Fed.R.Crim.P. which pend upon magistrate’s ascertainment an “arrested person” to be taken “without suspect’s needs and wishes with re- unnecessary delay before nearest avail- gard token, to attorney. By the same able federal magistrate” for an initial hear- respect suspect’s have bail ing. At hearing the fifth amendment set expeditiously may cause the magistrate conferred upon Melanson privilege proceed immediately without self-incrimination, against see United —even place counsel in inquiry the limited Dohm, 1169, States v. (5th 618 F.2d 1173 —with neеded set bail. It not seem 1980) Cir. en (rehearing banc), and the sixth adopt forbidding workable to flat rule gave amendment a right him to counsel.3 from magistrate asking questions 5(c) any until Rule of the Federal Rules of Criminal appointed counsel is and arrives.5 In so says Procedure he was to be informed however, proceeding, magistrate initial must “of the complaint against him be sensitive any acutely suspect’s rights and of to the affidavit filed therewith, counsel, of curtail if his to retain of and must the individ- questioning request assignment ual situation so the present of coun- indicates. In ease, if he is sel unable to obtain upon ... relied informa- general questioning circumstances under tion obtained in his which may secure pretrial release ... that he is in deciding appoint counsel. Melanson’s Supreme person The attornеy; magistrate’s 3. has held Court that “a is without an one of lawyer help helping entitled to the get at or after the duties is him one. See infra. judicial proceedings time that have been initiat- against by way ed him—'whether of formal 4. We need decide Melanson was whether charge, preliminary hearing, indictment, infor- independently warnings entitled to the set out ” mation, Williams, arraignment.’ Brewer v. Arizona, 436, in v. Miranda 384 U.S. 86 S.Ct. 387, 398, 1232, 1239, 430 U.S. 97 S.Ct. 51 1602, (1966). 16 L.Ed.2d 694 See United States Illinois, (1977) (quoting Kirby L.Ed.2d 424 v. 186-88, Washington, 181, v. 431 U.S. 97 S.Ct. 682, 689, 1882, 1877, 406 U.S. 32 1814, 1818-19, (1977); 52 L.Ed.2d 238 United (1972). Sep L.Ed.2d 411 also cases cited in 564, Mandujano, States 96 v. 425 U.S. S.Ct. Brewer, 398-99, 430 U.S. at 97 S.Ct. at 1239. 1768, Berman, (1976); 48 L.Ed.2d 212 Labbe v. Apart Constitution, from the there is a statuto- (1st 1980). 621 26 F.2d Cir. ry right every pro- stage to counsel “at of the ceedings appearance from initial before [the] Subsequent proceedings, ap- after Magistrate through the United States or court pointed, presence only be conducted in the will ‍​​​‌‌‌‌​‌‌​‌‌‌‌​​‌​​​​‌​‌​​​‌‌​‌‌​​‌‌​​​​‌​‌‌‌‌​‍apрeal.” 3006A(b), (c). practi- 18 U.S.C. A §§ fast rule would counsel. A similar hard and problem stage proceed- cal at this of a criminal impractical applied be as an initial ing suspect is that a be like Melanson will often 584 thereafter, of the of The circumstances priate did not come until bail.

outburst codefendant, of the evi Cyr, being ques- weight when a charged fense tioned. are obtainable the accused against dence suspect than the from sources other price paid for this limited uncoun- case, two “of factors are, many any in time, inquiry selled is that from time to establishing in taken into consideration 1169, Dohm, supra, was true in 618 F.2d the discretion of the release in terms of difficulties will arise. Certain of the fac- Miller, 589 F.2d at supra, magistrate.” bail, granting to the such pertinent tors 3146(b)). 18 Most (citing 1135 U.S.C. § circumstances of the as “the nature and the Fifth required, as Cir the information weight and “the charged” offense Dohm, 1174, 618 F.2d at does accused,” cuit said in see 18 against evidence U.S.C. refer to the 3146, try to accused may inspire an accused to not necessitate § show, An accused’s bail inadvisedly, that matters differ- facts of the case. portrays, contingent ability speak ent from what on his are not so water as a result. getting him into hot use of testi fear of the future without urge so far as to judges gone must, Simmons, by analogy Some that he mony suppression the blanket of all such utter- immunity from use of granted a blanket ances, lan- relying Supreme Court’s hear during made an initial all statements context, that it “intol- guage, in another Dohm, Accord, 618 F.2d at supra, ing. erable that one constitutional should Mullen, 100 Flint v. 499 F.2d 1173-74. See have to be surrendered in order to assert denied, (1st 95 Cir.), cert. States, another.” v. United 390 Simmons (Simmons (1974) 301 42 L.Ed.2d S.Ct. 377, 394, (1968). 976 U.S. S.Ct. a deferred sentence apply held not to “that when a de- Simmons Court held Anderson, v. hearing). Cf. United States a motion to support fendant testifies (8th 1977) (applying 567 F.2d 839 Cir. Sim Fourth suppress evidence on Amendment proceed on motion to mons to a grounds, thereafter testimony may appointment of coun pauperis forma him at be admitted trial on Branker, F.2d sel); guilt.” issue of U.S. S.Ct. 1969) (Simmons (2d applied Simmons, it has been By analogy Anderson, supra). in same context as proceed- argued testimony all bail ing should be immunized from future use. therefore, not, in our does Simmons Judge Goldberg’s panel dissent in the See view, in a the blanket exclusion mandate Dohm, opinion in United v. 597 F.2d States all remarks made any trial of criminal 535, (5th 1979). The 544-56 Cir. district an initial On the suspect by similar, though swеep- less court relied on hand, right the sixth amendment other of its ing, reasoning principal ground as the as the fifth amendment as well here. holding self-incrimination, estab privilege against on an earlier oc For reasons articulated which conditions must be lish formidable Miller, casion, v. 589 F.2d United States admis any uncounselled satisfied before denied, 1978), 440 (1st 1117 Cir. cert. U.S. in the course of such sions “blurted out” 1499, (1979), 958, 59 L.Ed.2d 771 99 S.Ct. in at- the later hearing are to be allowed is the reject foregoing view. Not to whether these condi We now turn trial. absolute, right to less than see United bail here. admissibility are a barrier tions Abrahams, (1st Cir.), 3 v. 575 F.2d States 85, denied, 821, 58 cert. 439 99 S.Ct. U.S. III. (1978), suspect L.Ed.2d 112 need not sur States, Massiah v. United render his fifth and sixth amendment held that an accused Supreme Court right magis in order to assert his to bail: a amend of the sixth protection denied the all cases honor an virtually trate can against him at there was used ment “when silent or to be accused’s to remain incriminating of his own still his trial evidence represented by appro counsel and set

585 words, agents (1971); which federal had deliberate- L.Ed.2d 325 United v. De States ly 900, (5th 1970); elicited from him after in- Loy, been 421 F.2d 902 Cir. Unit Garcia, dicted and in absence (2d counsel.” 377 Cir.), ed v. F.2d 321 States 201, 206, 1199, 1203, 84 12 377 U.S. S.Ct. denied, 991, 489, cert. 389 88 19 U.S. S.Ct. (1964). L.Ed.2d 246 As construed later (1967). 484 The fact L.Ed.2d de cases, holding developed has into a gen- meeting has out a with sought fendant excluding against eral from de- rule use government spoken on his own initia fendant at trial all obtained statements great weight. tive has often been accorded government from him a result 337; Hale, Tucker, F.2d at supra, See 562 its failure honor the accused’s 1018; supra, supra, 435 F.2d at De 421 Loy, counsel. Such failures have taken various F.2d at 902. A related factor is the absence forms. The sixth has amendment been of government overreaching surrepti found government to be violated where the Wilson, activity. tious id. See But see has obtained an statements from accused 584 supra, govern F.2d at 1191. Where through any the absence of counsel form of obtaining ment was not involved in state interrogation, surreptitious. overt or See from the accused in the ments absence of Williams, 387, Brewer v. 97 S.Ct. counsel, the statements have consistently 1232, Massiah, 51 424 (1977); L.Ed.2d supra, been held admissible under sixth 246; 201, 1199, 377 12 U.S. L.Ed.2d Hearst, amendment. See United States v. Anderson, v. 523 United States F.2d 1192 1331, (9th Cir.), 563 F.2d 1347-48 cert. de (5th 1975). Cir. Even any attempt without nied, 1000, 1656, 435 98 56 U.S. S.Ct. part to elicit (1978); Aloisio, L.Ed.2d 90 United v. States information, deliberate in- 705, (7th Cir.), denied, 440 cert. 404 F.2d 710 volvement produce in circumstances that an 824, 49, 30 51 (1971); U.S. 92 L.Ed.2d S.Ct. response may incriminating offend ex rel. v. Yeager, United States Baldwin Beatty to counsel. v. See United (3d 1970), denied, 182 428 F.2d Cir. cert. 401 States, 45, 234, 389 88 U.S. S.Ct. 19 L.Ed.2d 905, 91 27 U.S. S.Ct. L.Ed.2d 822 (1967) curiam); 48 (per Ohio, McLeod v. 378 (1971); Pate, ex rel. v. Milani 84 U.S. S.Ct. 12 L.Ed.2d 1037 (7th Cir.), denied, 425 F.2d cert. 400 (1964) curiam); White, (per Hancock 109, 27 (1970). U.S. S.Ct. L.Ed.2d (1st 1967). F.2d 479 if Finally, adequately ap the accused was rule, The converse of the Massiah of prised rights, of his admonished exercise course, purposes is that of the sixth them, and speak, nevertheless chose to amendment, incriminating statements made waiving privileges, effect his constitutional accused in the of an attorney absence courts found no contravention of the are admissible him trial where Hale, supra, to counsel. 562 F.2d See product not the of government actions tak 337-38; Vasquez, United States v. in derogation en of his In counsel. 730, denied, (5th Cir.), F.2d 733 cert. 414 deciding the has honored 836, 181, 94 38 72 (1973); U.S. S.Ct. L.Ed.2d rights, an accused’s sixth amendment courts ‍​​​‌‌‌‌​‌‌​‌‌‌‌​​‌​​​​‌​‌​​​‌‌​‌‌​​‌‌​​​​‌​‌‌‌‌​‍354, Crisp, United States v. 435 F.2d 358-59 closely have looked at the voluntariness (7th Cir.), denied, 947, cert. 402 91 U.S. S.Ct. Henderson, v. statements. See Wilson Tucker, 1640, (1971); supra, 29 L.Ed.2d 116 1185, (2d 1978), 584 F.2d 1190 Cir. cert. 1018; Loy, supra, 435 F.2d at De 421 F.2d denied, 945, 2892, 442 61 U.S. 99 S.Ct. at 902. Hale, (1979); L.Ed.2d 316 United States v. 336, these (5th 1977), Drawing 562 F.2d on several considera 337-38 Cir. cert. denied, tions, 1022, how 748, 54 we cannot see the United States U.S. 98 S.Ct. (1978); L.Ed.2d 770 United States v. this ease violated Melanson’s sixth Tuck er, 1017, regard (9th 1970), 435 F.2d Cir. to counsel with cert. amendment denied, govern at 976, 1197, 28 now issue.6 The 401 U.S. 91 S.Ct. the statements Williams, analysis language in v. 6. Our treads two alternative on Brewer between drawn positions. hand, one least two circuits On at things other assess Melanson’s credi- constitutionally among ment is not “made deaf to uncoerced, insistent, and untricked fit the explore as he saw facts bility and properly statement of a warned defendant.” understanding of events relevаnt to an Loy, supra, De 421 F.2d at 902-03. Melan hearing.” See infra. This [bail] remarks in challenged son did not make persuasive be had argument might Melan- response questioning. remarks suppression given testimony son spontaneously volunteered with a view to that he volunteered the hearing showing helping Cyr testifying. Ms. who was then himself, but, to benefit as we ex- remarks time, Melanson; (1) At the been told below, he greater length did not. plain at attorney being procured that an for reason contrary, only To him; (2) had been advised that he had a hearing the suppression advanced silent; (3) to counsel and to remain that he having spoken out was wanted “to himself, Cyr, knew that Ms. was being Cyr,” quite Mrs. see infra —a reason protect questioned; finally (4) knew that suggested by judge. to that opposed question remarks in could harm his moreover, note, transcript We position, own and thus cannot have volun suppression hearing virtually reveals no them in safeguard teered order to his own “exploring]” by judge the district of the rights.7 bail Further, bail events at the earlier remarking that when the comments express find- credibility the court made no were volunteered “Melanson reason- subsidiary findings nor did it make ings ably rights, have understood that his as well apparent its be- indicating some basis for consideration,” Cyr’s, were still under to Melanson’s own testimo- opposed lief— ny suggests district court that Melanson felt acting to protect he was himself. —that compelled questioned to volunteer the re- analysis ultimate appears The trial court’s marks in to safeguard order his own bail to have rested not on evidence quite clearly would, rights. Any suggestion such suppression hearing at thе but on adduced think, weight clear of the transcript of the of the bail analysis its clearly evidence and hence erroneous. See judge hearing. As the district was not Bateson, (1st Holmes v. 583 F.2d hearing, at the bail he was no bet- present 1978). Judge Chief Coffin contends in than we to assess what took ter situated his dissent that the district court’s intima- there. place point tions on this deserve deference be- is true that the bail judge Though cause “the district held a motion, suppression jointly at which he Cyr could was conducted Melanson and Meachum, supra, Cassesso S.Ct. at 429 U.S. Hancock, supra, only pro (1976); conclude that the sixth amendment 50 L.Ed.2d 135 interrogation tects an accused from in the ab 378 F.2d at 482. Henderson, sence of counsel. See Wilson v. supra, Cir.); Hearst, (2d 584 F.2d at 1190-91 part 7. Because we find no failure on the supra, (9th Cir.). 563 F.2d at 1384 the other On to honor Melanson’s to coun- hand, interpreted Massiah the Third Circuit has sel, go question of we need not into the difficult require post-indictment “all exclusion precisely establish a what must be shown to government agents made to statements absent when an accused makes an waiver Yeager, proof of effective waiver counsel.” response question to inculpatory statement supra, added.) (Emphasis 428 F.2d at 184. put by hearing unat- at an initial consistently decisions have Our held delib cases tended defense counsel. As other incriminating erate of an elicitation statement waiver, “depend, the answer must doubtless necessary in the absence of counsel a case, upon particular in each facts and counsel, precondition right ” to violation of the surrounding that ... circumstances ‍​​​‌‌‌‌​‌‌​‌‌‌‌​​‌​​​​‌​‌​​​‌‌​‌‌​​‌‌​​​​‌​‌‌‌‌​‍case. not, despite suggestions but we have to the Zerbst, v. Johnson 304 U.S. see, Pate, e.g., supra, contrary, 7; F.2d 1019, 1023, (1938). North Cf. 82 L.Ed. 1461 Yeager, supra, gone 428 F.2d at 184 n. so & Butler, 374-75, Carolina v. adopt per far as to se rule of the Third 1755, 1758, (1979) (apply- S.Ct. 60 L.Ed.2d Monti, See United States v. Circuit. 899, 557 F.2d ing the same standard to determine waiver of Meachum, (1st 1977); Grieco rights). fifth amendment (1st Cir.), sub nom. cert. denied 533 F.2d 713 magistrate shifted his The ques- twice arrest. initial was held the other, tioning one to the his and at day beginning from defendant after arrest he proceedings formally as to each were adequately right was informed his to coun- Thereafter, separated. prior While no final decision sel. regard- Melanson’s later outburst, bail ing right appointment Melanson’s to counsel and to of counsel for length. had prior ques- been handed down to the him was discussed Thus the tioning Cyr that sparked magistrate interrupted exculpa- Melanson’s Melanson’s comments, temporarily government’s tory response to the descrip- suspended an- Melanson’s case: he had saying, tion his arrest “Excuse me. Put appointed nounced that counsel would be again case on for Monday morning this Melanson; for and that was to re- bail details on get after some this fellow.” Monday viewed at 9:30 a.m. with morning “I say, figure The court went on to once he present. nothing counsel There is whatever can talk his gets lawyer, lawyer his he in the that support finding record maybe can here freely more than he his Melanson understood the interview with can out better lawyer help us with some Cyr as somehow at him so directed bailable, they information. If are I don’t involving Melanson’s own testi- not, If they want to hold them. are we will mony in the district court makes it clear right. set hold them.... All Let’s that Melanson’s оutburst was not prompted Monday down for 9:30 on morning. This is by concern his right for to counsel and bail. Be your lawyer for review of sure bail. On government cross-examination by the here, [Emphasis Mr. supplied.] Nelson.” the suppression hearing, Melanson was point said he didn’t At asked, lawyer. Eventually, after further have a “Q. anyone you up Did force to stand counsel, the obtaining discussion of court you and make the statements made dur- with Melanson as finished follows: ing hearing? Well, appoint let “THE COURT: me “A. No. that that lawyer capable I think is can “Q. something you itWas wanted case, you and then your handle if don’t do? Monday morning, you want him after can Yes, “A. sir. get lawyer, own but for time your “Q. Why did you want to do it? I being, lawyer you want a for each of protect “A. To Cyr.” Mrs. people Monday morning. here on I don’t happen going know what’s next еxplanation, court’s, His unlike the district case, here, Edwina but on this one Cyr; is consistent with the thrust and content appoint lawyer temporarily will the statements. Melanson seems to have least. believed shouldering that blame

incident minute, with the agents right, for a “All be seated Mr. Cyr, Nelson; would help either on the matter bail can get and we will see if we He hardly otherwise. could have be- lawyer phone to be sure he can be lieved help the statements would him the lawyer here. We want a that can be any way. same or in here,”

We also believe to be upshot the clear of this extended discussion weight of for, obtain, the evidence the district court’s Melanson’s need and ability to finding “the representation has was that his to counsel proved by preponderance operative fully evidence was then and would be re- the defendant spected by magistrate. understood his We think it was represent have counsel him in relation to made bail abundantly clear Melanson’s bail as well at trial was later to resume with remain silent until attorney present. upon insistence inter- present.” Melanson was informed of his Ms. vening purpose exculpating rights, including personal upon Cyr, could have reflected a

588 Miranda, enough. mere silence is absence of counsel. in the speak desire to the defendant’s mean that That does not government the way elicited It was in no understanding an of silence, with coupled said, from did it derive nor, we have of conduct indicat- a course rights and the uncounselled effort misguided some a conclu- waiver, support never ing In such assert his own suspeсt to waived his has a defendant sion that knowl- given Melanson’s circumstances — that a presume courts must rights. The pro- toway were under edge that efforts the rights; waive his did not the defendant see that cannot cure counsel —we in at great; but burden is prosecution’s him the denying guilty was clearly waiver can some cases left him least because it merely to counsel actions and words from the inferred suspect a fellow room while seated in the interrogated.” person the design no being there being questioned, was would that Melanson expect nor reason to Butler, at supra, 441 U.S. v. North Carolina Innis, v. 446 Rhode Island interrupt. Cf. omitted). To (footnote 373, at 1757 99 S.Ct. 1688, 64 L.Ed.2d 291,100 1682 at S.Ct. U.S. issue, look “into the courts must decide under Miranda (1980) (“interrogation” 297 surrounding the circumstances totality of “words or to include v. Arizona defined G., 442 v. Michael Fаre interrogation,” the part police of the ... actions on 2571-72, 2560, 724-25, 99 S.Ct. U.S. likely reasonably know are police should age, expe (1979), including the L.Ed.2d 197 response from incriminating to elicit an rience, education, intelligence background, omitted)). (Footnotes suspect.” Fare, the defendant. See conduct of and 2572; at at 99 S.Ct. 442 U.S. supra, IV. 374-75, 99 S.Ct. Butler, at supra, U.S. basis for independent an Presumably as Bustamonte, 412 v. Schneckloth suppress, motion to granting Melanson’s 2041, 2047, L.Ed.2d 93 S.Ct. U.S. found that district court (1973). Mi- “heavy burden” under not meet its did already determined We have Arizona, v. randa improperly were not statements Melanson’s (1966), showing that 1602,16 L.Ed.2d questioning magistrate’s by the compelled Melanson at issue making the statements his sixth concern for Cyr intelligently knowingly and voluntarily, the con rights. On eighth amendment and remain right to waived his fifth amendment of concern out were volunteered trary, they the rec- Again, silent.8 our examination court The district for a co-defendant. conclusion is ord that this indicates however, “the absence of troubled, also of the evidence. weight the clear by the explanation and full cautions explicit Miranda, Court Supreme Since incriminating ef possible of the of the show developed parameters has hear the bail making statements fect of government: of the ing required of waiver warn sure, magistrate’s To be ing.” of the minimal, appraisal but ings were oral statement written or express “An case of this circumstances totality silent or to remain of waiver of under nevertheless strong shows that usually to counsel and com waiver, fifth amendment stood his but validity proof of informed of He was them. waived petently or suffi necessary inevitably either again arrest rights upon is his question waiver. The cient to establish previous He had outset of the bail form, whether but rather not one of being arrested with experience volun knowingly defendant fact speak a chance to given charged. When in the rights delineated tarily waived the ques- immediately after the bail said unequivocally As was Miranda case. Innis, supra. holding in Rhode Island pass by question Miranda Court’s whether 8. We Supreme apply under the on these facts arose, rights that be identity tion his chose not to view these could served of he issue; rather, said, the “I by up, point address he have we arrive at the speaking now,” an nothing say to but then offered could where Melanson assert certain consti- exculpatory leading version of the events rights only by right saсrificing tutional his arrest, up apparently response to to his to remain silent. inculpatory an version related the legal fact have significance This no government attorney.9 As we have else- if Melanson had waived his Fifth Amend- observed, selectively where answering ques- right ment not to have his own statements may

tions “not only...a demonstrate him at trial. the admitted But knowledge right of the remain silent but finding pre- district court’s second factual also intelligence and will vindicate a of finding cludes waiver: court found Miller, supra, that 589 F.2d at right.” 1135. prerequisites that one of the valid The has met its of burden waiver, understanding by Melanson that showing Melanson’s statements mani- silent, right his to remain was not proven fested a voluntary, knowing intelligent and by a of the evidence. If this preponderance waiver to remain silent. There- errоneous, finding is clearly then fore, the admission of those statements question presents ‍​​​‌‌‌‌​‌‌​‌‌‌‌​​‌​​​​‌​‌​​​‌‌​‌‌​​‌‌​​​​‌​‌‌‌‌​‍this is case whether against him at trial would not violate the non-waived Fifth Amendment un- fifth amendment. by the duly burdened admission at trial Reversed. uncounselled statements made in further- ance of two other constitutional COFFIN, Judge Chief (dissenting). light, this this differs in two Seen case important respects from Because I see district court’s two Miller, supra, holding which in view findings my salient fact being clearly as not erroneous, lightly I should extended. For the conclude that case is distin- guishable findings to be stated I think the significant respects in two reasons from Miller, not be set aside. (1st United States v. should 589 F.2d 1117 1978). I persuasive Because see no First, many I think support indications Miller, to expand scope reason I court’s finding district Melanson judgment would affirm the below. have that his reasonably understood Eighth first the two is that when findings own Sixth and Amendment remarks, Melanson made acknowledges his “volunteered” were still at The court issue. he “may reasonably have understood that the bail con- several factors: defendants; his rights, Cyr’s, as well as were jointly under ducted for the two I By “rights” consideration.” think it is shifted back and forth from one to earlier; clear plural from the use of the and from other no final decision had been case; later concerning scope remarks of Me- magis- reached in Melanson’s understanding lanson’s the court was trate had told merely Melanson “be seat- referring to both the have ed for minute”. think other factors appointed and If significantly buttressing to have bail. the district court’s indeed outburst support- Melanson’s could conclusion can be adduced as well: ably intensively be found to have been had stimulated a whole focused persuade desire to the magistrate that he points numerous the merits of bail, case; should have both counsel aby government’s Cyr’s testimony imme- argues exculpatory, that the statements which ent —the thrust earlier inculpatory. anything, seeks introduce were a “cla- If Me- latter which, claims, ability rification” these remarks of his lanson’s initial demonstration involuntary. himself, ques- He concludes that the later seek to exonerate even when suggests magistrate, statements must therefore also be found to that his later tioned However, compelled. reject interrupt proceedings in- been decision despite (rather characterization of the relation between the criminate himself was made intent, quite of) previous statements. the two are differ- remarks. than because days, ing have one in court in a few diately preceding outburst court-appointed Me- arguably saying mentioned and incriminated he needed a finally lanson; own statements are en- extent lawyer. Melanson’s I concede that the would defense, in- and tirely consistent with understanding as to to Melanson’s directly well be seen as very deed question. is a But remain silent close seeing any as he denied exculpatory insofar noted, where, the the as district court cars; lights police blue the Melanson’s a in estab- government heavy bears burden that to is in Cyr assertion he intended aid waiver, where the trial court has lishing he way no inconsistent with view that to have failed to found the spoke in an to further his own inter- effort burden, that court carry such a and where ests; and, finally, continued has whose credibili- observed defendant discuss, set, appears have and indeed issue, appellate in an court ty centrally outburst, despite Melanson’s bail after his artillery heavy to demonstrate needs until was delay earlier talk of a counsel clearly finding. erroneous addition, course, provided. the dis- by these facts to be as found Taking judge suppres- trict held a court, I see this case as different in district motion, he could among sion at which other First, respects two from Miller. significant things assess credibility Melanson’s and ex- might have reasonably while Melanson felt plore as he fit the facts relevant an saw well as his right that to counsel as understanding at of the events stake at the time he made the to bail was at While I the cumulative impact think alreаdy Miller had question, statement in these indicia is rather I need overwhelming, hearing began. time by the bail far; go nearly say not all I is that so here at 1135 n. Thus Melanson was F.2d opinion the court’s seems me vulnerable to statements, at the time of his uncounselled saying finding in that clearly below is thought and his Sixth as also could erroneous. jeopar- rights well Eighth as Amendment Second, I considerable find evidence speak. For by a failure to these dized support the court’s finding district that the signifi- lack of counsel is reasons Melanson’s prove by a preponder- did not cant of whether his Sixth irrespective that ance evidence Melanson under- rights Amendment themselves violat- “his remain stood silent until his Second, have here ed this case. in attorney present”. Melanson never af- explicit by the court to the finding district firmatively any understanding indicated not intend did effect such right, not to mention an intent finding supported by any rights, waive it; waive that he testified had not know- evidence; contrast, Miller, by ingly any rights waived a form signing finding as court had made no district before; day magistrate’s statement waiver, rejected argument Miller’s and we terse, of Melanson’s was a rights minimal intended “un- no waiver been elaboration; outline, without the statement F.2d at 1135 n. 17. Thus tenable”. specific no discussion included of bail hear- rights Fifth Amendment are immediately ings, by and was followed stake, question still much very questioning relevant to the bail determina- unduly would they whether burdened tion; magistrate’s questioning way not be Miller. issue in a could agent’s testimony went and fre- quickly I significant think these distinctions quently to the events Melanson’s outburst —and poli- I think the relevant constitutional addressed; later and more intаngibly —and are cy suggest they considerations a matter on the district later which court’s expand to dictate that we not enough least opportunity might to observe the witness rights the conflict of in- it some Miller to cover give advantage seems —Melanson defendant, particu- Where a intimidated volved here. possibly throughout confused or larly by knowingly hearing: answering first one assisted when lawyer, if he have his statement agree- asked can afford then waives his trial, against significant used him at no in which court respect extends limita- policies argue allowing such use. important tion on constitutional I Where, contrast, the defendant is unas- that, hold at least where both Sixth knowing such sisted counsel and no Eighth rights arguably Amendment are tendered, a very waiver has been different stake, a knowing and where waiver оf balance obtains. have serious reserva- clearly prov- Fifth is not Amendment tions as to whether the rather attenuated en, bail a defendant’s statements at a hear- al- interest in law enforcement served ing may not be admitted into evidence lowing the into incriminating statements him at trial. (i.e., evidence on bail-hearing reliance convictions) statements to obtain is really MEMORANDUM AND ORDER danger sufficient to offset the rela- tively palpable and immediate bail and Rehearing In their Petition for rights recognize counsel stake. I that Banc, Rehearing En appellee counsel for defendant’s in- testimony may own not be out pointed certain factual inaccura- determination, dispensable a bail but 23, opinion cies in our of March 1981. does seem both the facts of an incident There, wе hearing indicated the initial highly important are to such a determina- codefendant, for Melanson and his Edwina description tion and that only of began Cyr, morning Friday, on the of Feb- alleged likely magistrate offense to reach a recessed, 8,1980, ruary and then resumed in in absence of a defendant’s testimony afternoon, with bail being set for the which, that of the of prosecution of —both defendants conclusion of the course, Indeed, are true here. barring the portion afternoon the proceedings. subsequent admissibility defendant’s point for now appellee Counsel out that in bail-hearing a case as statements in such $50,000 actuality bail in the amount of expeditious this would allow a full in- set for Melanson at end of the quiry to place hearings take at bail without morning February areWe told сhilling the important assertion of rights that Melanson did not come back before Dohm, them. See United States v. 597 F.2d magistrate until following Monday, 535, (5th 1979) J., Cir. (Goldberg, dis- 11, time, February at which with id., (5th senting); 1980) 618 F.2d 1169 present, bail was reviewed and reduced to (en banc) (holding statements made at bail $25,000. (Our description timing of the hearing inadmissible no ground on as proceedings apparently correct knowing waiver of Fifth Amendment Cyr, who came before back shown); Note, defendant had been Unit- on the afternoon Friday, February ed States Compelled v. Dohm and the Elec- present. with counsel Bail was set then for tion Between the Right to Remain Silent $10,000 her surety.) without and the Right Bail, to Reasonable 94 Harv. recognize, As counsel inaccuracies in (1980); Note, L.Rev. 426 generally see Re- our opinion are the result of incorrectly solving Tensions Between Constitutional transcripts dated in the appeal. record on Rights: Use Immunity in Concurrent or morning record of the and afternoon Proceedings, Related 76 Colum.L.Rev. 674 on hearings February as well the later (1976). comprise single February Although these considerations do not in- transcript bearing February the date presently duce me my own opin- disavow reading 1980. A of the does transcript not Miller, ion for the they away court take expose inaccuracy of that date. The all taste for expanding it. The relative problem is now out pointed to us harmlessness of the statements at issue in first time. this case arguably altruistic motiva- tion defendant make appreciates having admissibili- The Court these mat- ty here, However, seem brought innocuous but think such a ters attention. to our perception potentially clouds the significant they do undermine cornerstone fact that Melan- opinion, which is the

our knowing- out” remarks

son’s “blurted assist a code- volunteered in an effort to

ly elicited or improperly

fendant and were not need to response perceived to a

uttered

assert his own the Petition for accordingly deny

We following and make the amend-

Rehearing March 1981: opinion

ments to our made in Note: Corrections were

[Editor’s

accordance with the order.]

COFFIN, join Judge, Chief does and Order. He

the Memorandum Rehearing. grant

vote to Petition SANCHEZ-MARIANI, P.

Gloria

Plaintiff, Appellant, al., ELLINGWOOD, E. et

Herbert

Defendants, Appellees.

No. 82-1383. Appeals, Court of

First Circuit.

Argued June 20, 1982. Sept.

Decided

Case Details

Case Name: United States v. James W. Melanson

Court Name: Court of Appeals for the First Circuit

Date Published: Oct 15, 1981

Citation: 691 F.2d 579

Docket Number: 80-1445

Court Abbreviation: 1st Cir.