United States v. Linda Sue Brown
459 F.2d 319
5th Cir.
1972
Check Treatment

*3 COLEMAN, Before SIMPSON RONEY, Judges. Circuit RONEY, Judge: Circuit appeals Linda from Sue Brown possessing seven conviction $100 Notes in vi- counterfeit Federal Reserve prin- Her olation of 18 U.S.C. § cipal arguments relate to a confession she claims was obtained viola- tion of Miranda v. (1966) of the Federal Rules Crim- inal affirm. Procedure. We May 28, 1970, at- On Dallas, tempted to rent a Cadillac Texas, The with a BankAmericard. suspicious because was rental attendant age (43) identification listed ap- did submitted 28), pear (defendant correct nervous, and wore defendant seemed sunglasses although almost dark. it was Bank- local called the The attendant mag- A taken state the card. she before to check Americard office constitu- Bank- advised her from istrate who received return call was Tennessee, rights. May day, Memphis, ad- The next tional Americard in mag- again vising taken before was stolen. card rights. police telephoned istrate and warned of the Dallas attendant arrival, attend- an officer’s May Also ant had occurred. told him what Secret two United States visited spoke the BankAmeri- officer then agents. the de At Service Memphis checked card official rights by fendant was advised presented card the number of credit warning and waiver means standard the number defendant with sign. read but did which she asked The officer card listed as stolen. particular talk with a Brown asked to and was identification attempted infor- which contained driver’s license call him. When *4 correspond de- did not with mation that reached, message call the left was description. age physical or fendant’s agents, both. or or one of the defendant and her pláced arrest Brown was coun about that Brown was asked After purse In addition to was searched. money had revealed who terfeit and she gun, police the seven counter- the found given money, denied know her the but subject of this feit which were the bills ing conversa it This was counterfeit. conviction. twenty and minutes tion fifteen to lasted concerning Although testimony it con there no defendant was the trial.2 tends that arrest invalid because the the was probable cause, upon not this con based Day week- Because of the Memorial Clearly, merit. based tention without again end, until not visited Brown was practical of “the considerations charges day the state that June 1. On life,” everyday police officer could the dropped was and the were reasonably believe that the She over to the Secret Service. turned committing a vio had committed or was they to their office where was taken improper of lation Texas law relative to United States A.M. A arrived 9:45 possession use credit cards.1 or of present but one Commissioner was not 160, Brinegar States, v. U.S. United 338 Through the expected at P.M. was (1949). 1302, 69 S.Ct. 93 L.Ed. 1879 office, Marshal’s agents attempted Commis- to reach the she was After defendant’s again Upon arrival, City jail sioner. taken to where the Dallas rights by use of the stand- of her was advised around 10:00 P.M. read, rights but did not ard which she Miranda and brief- advised sign. agents procedures ly interrogated explained At about offenses. requirements governs validity 1. not Allen are relevant. State law of the (5th 926 384 F.2d arrest. Miller v. United 357 U.S. agent 301, 1967). 1190, It true testified 2 that 78 S.Ct. 1332 L.Ed.2d May (1958). powers 29 interview defendant As that at to arrest of state years officers, old had 28 and see Vernon’s Art. stated completed was §§ Ann.C.C.P. grade 14.01, 14.03, in school. the 11th 14.04. For credit of- card independent testimony Code, from fenses see Vernon’s was Tex.Penal There § age and aunt as to defendant’s 1555c. defendant’s age background. and only ques relevant to the education was Defendant claims that her statement con- cerning of the these matters was obtained in vio- tion of voluntariness confession significance Arizona, supra, its There lation Miranda v. was limited. prior fore, also contends that warnings even if there a technical viola occasions was admitting given, in testi inade- were or were tion Miranda quate. However, mony age education, no ob- harm since statements Smith, 418 tained as a result of less error. States v. interviews evidence, in introduced were Miranda F.2d 223

323 counterfeiting presumed ‘simply filing from the silence relating arraignment, posting the accused after are of bond lawyer. simply from the fact that a Within or appointment eventually arrival, in fact ob- Brown confession was five six minutes of attorney who tained.’ Miranda U.S. speak with asked to 29, 436, 475, 1602, May had and who 86 S.Ct. 1628 [16 had been called (1966). express An L.Ed.2d the call. The 694] not returned spoke to him for that the individual does contacted lawyer required, twenty sub- want a is not how- minutes. Brown fifteen to ever, agents the attor- individual sequently show told present. right silent. ney remain to have one waived had advised Cir., lawyer, Bond See v. United After the conversation 1968, 162, be bet- All that it would told her got prosecution de- “off her chest.” is that the matter must show ter if she effectively confidence advised of had lost fendant indicated she She intelligently rights re- he had and that he then because pro- understandingly previous call and exer- sponded declined to to the Cochran, Carnley nar- full confession them. to make a cise See ceeded completing After rative form. story, (1962).” called aide was an administrative L.Ed.2d 70 story Montos, repeated, reduced signed typewritten form and *5 ap- completed at defendant. This government has hold that We mean- proximately In the P.M. deliberately shown that the defendant attempting agents to time, were .still right her her counsel and waived to through reach the Commissioner against privilege self-incrimination. office. Marshal’s United States counsel, right it to to As her appear until 4:00 did Commissioner understood clear defendant time the P.M. at which right her to for she exercised him. taken before confession. On each occasion interrogated by the Secret I. Miranda waiv refused to execute the Service she attorney requested that an er form and fully the defendant was Since de called. After her choice be privilege correctly of her advised and attorney and fendant had talked with an right against her and self-incrimination counsel, request a without further occasions, separate on five counsel cir In the confessed.3 only magistrates, twice in a cumstances of this case failure knowingly and question is whether she right counsel, had voke the Where, rights. intelligently those waived exercised, a just demonstrates been here, without a statement is obtained as right. v. of that United States waiver lawyer heavy present rests a burden a 1970). (5th Green, F.2d 946 Cir. 433 government demonstrate knowing intelligent Miran waiver. her also waived The defendant 475, S.Ct. da at 86 v. 384 U.S. against In privilege self-incrimination. This has stated: court warnings repeated addition to the valid, rights, attorney advised Brown must made “To be waiver Notwithstanding

voluntarily, 5 to remain silent. Ogle, gave 238, may Cir., 1969, advice, defendant 418 F.2d presence ant, Wil could be waived. was not retained (5th States, appearance F.2d 398 331 son v. United defendant and made no States, Coughlan agents 1968) ; v. United if be- behalf. Even knew or Cir. (9th 1968). represent Cir. lieved the did defend- 391 F.2d 371 324 complete statement. The statement Gunn, here. United States v. 428 F.2d given only prompt- (5th minimal Further, pe 1057 ing by agent illegal that it better would be riod of detention which occurs got if challenged the matter off after the evidence is obtained her chest. The statement was determining is not considered in whether twenty thirty

within minutes the evidence should be excluded. Unit arrival at the Mitchell, Secret Service office 65, ed States v. 64 322 U.S. occupied by most of that de- 896, (1944); 88 L.Ed. Bar 1140 telephone fendant’s conversation with States, supra. nett v. United attorney. Defendant narrated prohibit Rule does not all activities and admitted offenses which delays, only unnecessary but ones. were remote from Dallas and the local determining delay whether a is unnec investigation. These circumstances all essary, various factors such as the avail intelligent knowing demonstrate a ability committing magistrate, privilege against waiver self- length delay prisoner before the Mix, incrimination. United States magistrate taken before the 1971, 615; 5th Cir. 446 F.2d police purpose justification, any, if Daniel, States v. 1971). delay Rogers for the are considered. 535 McNabb-Mallory II. he unavailability Here the of t The defendant contends that also ^ Commissioner was the cause of the de- she was not taken before a United States lay. The Secret Service contact Commissioner without de ed the United Marshal’s office lay required F.R.Cr.P., 5(a),4 throughout morning several times and that therefore McNabb Although and afternoon. the Commis U.S. expected sioner was to arrive at 1:00 (1943) 87 L.Ed.2d and Mal P.M., delayed appear he was did lory v. United P.M., until 4:00 which time *6 (1957), 1 L.Ed.2d was taken before him. during pe exclude evidence obtained a being violated, 5(a) meantime, orally riod when Rule is In the defendant had the shortly confession was The being inadmissible. confessed taken into establishing custody. Although burden of a Rule vio federal the statement lation is prepared typewritten on the defendant. Barnett v. was thereafter in during period il- this was not a legal detention since the statement was repetition a of her oral confession and Where, here, period as the arrival of the Commissioner was custody precedes arrest, state a federal Curry, still awaited. United States unnecessary delay the claim of tested (2d 358 F.2d 904 beginning detention, of federal .from unless Rogers supra, collusion and fed between state In eral authorities delay is shown. Lovelace there was an hour before agents attempted to reach a United 1966). No collusion is claimed or shown a or three Commissioner and two Proceedings 4. Rule 5. before the Commis- the nearest available commissioner or any nearby empow- sioner before other officer (a) Appearance persons charged before the Commis- ered to commit making sioner. An against officer an arrest un- offenses the laws of the United complaint person der a warrant issued a States. When a arrested with- any person making or brought an arrest without out a warrant before a com- per- officer, complaint a warrant shall take the arrested missioner other delay son without before filed shall be forthwith. given, delay appearance. before In hour “Once have been holding permissible subsequent procedure in- that it was is clear. If terrogate delay, during prisoner any man- indicates in individual rights long during ner, any were as none to or abused, questioning, this court said: remain that he wishes to silent, interrogation must cease. “The cases still some interro- allow point At this he has in- shown that he

gation arraign- between tends to exercise his Fifth Amendment matter, practical ment. As a if the privilege; any statement taken after allowing only justification delay person privilege invokes his can- interrogation unavailability were the product not be other than the com- commissioner, police officers pulsion, subtle or otherwise.” making could circumvent the rule during arrests on weekends or The record this case shows night. play must There be some did not indicate in system, flexibility some in the ques manner that she wished the delays permis- rules. Short remain tioning contrary, to cease. To the there sible.” 330 F.2d at 539. both trial and at the hearing delay suppress short the motion to this ease was unnecessary.5 affirmatively expressed story agents. desire to tell her FBI Mississippi circumstances, Under

III. these Conviction the Miranda rule was not violated and the trial court awaiting in While trial admitting correct defendant’s stant the defendant was de into evidence. Mississippi livered to state authorities petition rehearing is denied. robbery, for trial for armed of which complains she was convicted. Defendant deprived process of due Mississippi al and seeks relief from the

leged deprivation here. a conten Such

tion must first be addressed to Mis

sissippi courts, see 28 U.S.C. § certainly cannot considered appeal on a direct counter federal DOUGLAS, Petitioner-Appellant, Everett feiting addition, find conviction. we prejudice that no accrued to Roy Shelby NIXON, M. Sheriff of Coun- in her Mis federal trial virtue of the ty, of Ten- Tennessee and State sissippi proceeding. nessee, Respondent-Appellee. *7 Affirmed. No. 71-1650. Appeals, Court ON PETITION FOR REHEARING Sixth Circuit. PER CURIAM: April Appellant urges con- that her written fession should not admitted have been

into evidence because it was obtained Supreme man-

violation of the Court’s date Miranda v. 1602, 1627, (1966): delay, 5. Since we find no and is admissible virtue necessary govern- 3501(c), is not to consider of 18 § U.S.C. defend- rejoinder argument ment’s alternative ant’s said un- statute hours was obtained within six constitutional.