UNITED STATES of America, Plaintiff-Appellee, v. Robert A. FRAME, Jr., Defendant-Appellant.
No. 71-1516.
United States Court of Appeals, Ninth Circuit.
Jan. 20, 1972.
454 F.2d 1136
Appellant also contends that the trial court erred in not holding a hearing to determine whether her “confession” to the agents was voluntary. Jackson v. Denno, 1964, 378 U. S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. Suffice it to say that voluntariness was never put in issue. Not only was there no objection but there was no way the trial court could have been aware that the voluntariness of her oral statements to the agents was questioned. See 378 U.S. at 374, 84 S.Ct. 1774. There must be a limit to the clairvoyance we require the trial courts to possess.
See also Sellers v. Smith, 412 F.2d 1002 (5th Cir. 1969). Other circuits considering the problem have approved this position. United States v. Taylor, 374 F.2d 753, 756 (7th Cir. 1967); Lundberg v. Buchkoe, 389 F.2d 154, 157 (6th Cir. 1968); Garrison v. Patterson, 405 F.2d 696, 697 (10th Cir. 1969); La Brasca v. Misterly, 423 F.2d 708, 709-710 (9th Cir. 1970). Cf. Hizel v. Sigler, 430 F.2d 1398, 1401 (8th Cir. 1970).
The record shows that it was undisputed at trial that Agent Burgett gave Randall the Miranda warnings prior to each of their conversations. Regardless of whether the circumstances of Randall‘s interrogation were such as to require the Miranda warnings, Burgett‘s unchallenged testimony that Randall was given the warnings and that understanding the warnings Randall then made the statements was sufficient to sustain the prosecution‘s heavy burden of demonstrating that Randall had knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694, 724 (1966).
We have reviewed Randall‘s other contentions and find them to be without merit. The judgment of the district court is affirmed.
Kilkenny, Senior Circuit Judge, concurred in result.
John D. Lewis, of Holman & Lewis, Tempe, Ariz., for defendant-appellant.
Richard K. Burke, U. S. Atty., Morton Sitver, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee.
Before BROWNING, KILKENNY, and TRASK, Circuit Judges.
PER CURIAM:
Robert A. Frame is a manufacturer and seller of methamphetamine. He was charged, tried, and found guilty of four federal narcotics violations, receiving concurrent sentences on the four counts. On June 2, 1971, his conviction was affirmed by a panel of this court. Frame v. United States, 9 Cir., 444 F.2d 71.
While the appeal was pending Frame filed a motion for a new trial in the district court, based upon “newly discovered evidence” that his pretrial and trial counsel, Donald Wolfram, had a conflict of interest because he also represented one John Pike, one of Frame‘s customers and a dealer in narcotics.
On February 26, 1971, the district court held a hearing on the motion. Wolfram testified that he had represent
“Well, in first conferring with Mr. Frame as to my representing him, I indicated to him that if he was going to what we call turn state‘s evidence, there would be a conflict of interest in my representing him, in my opinion. He indicated to me that he had no intention of doing any such thing.”
Thereafter, two attempts were made to negotiate a plea to a lesser offense. Both were unsuccessful. No mention was made by Frame or Wolfram of the possibility of Frame‘s giving evidence against Pike. According to the Assistant United States Attorney who tried the case, even if Frame had agreed to plead guilty and testify against Pike, the government would not have dropped two of the charges because Frame was Pike‘s supplier and therefore more culpable. As mentioned, Frame received concurrent sentences on all four counts. Frame did not testify in support of his motion.
The motion was denied and this appeal followed.
At the outset we are met by the contention that the district court lacked jurisdiction to entertain the motion for new trial while Frame‘s direct appeal was pending in this court. At no time did Frame request a remand of the case.
“A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case.”1
Our prior decisions on the question are in some confusion.
Within five years of the adoption of the rule we held, ”
In Smith v. United States, 294 F.2d 771 (9th Cir. 1961), however, we announced that this court “prefers after the motion for new trial is filed in the district court, then that a motion to remand be made here, and that the district court advise this court if it desires to entertain the motion.” Id. at 771-772. See also People of Territory of Guam v. Inglett, 417 F.2d 123, 125 (9th Cir. 1969); Paddock v. United States, 302 F.2d 514 (9th Cir. 1962).
This language in Smith, Inglett, and Paddock represents a departure from the proper construction of
Accordingly, we disapprove the language in Smith, Inglett, and Paddock expressing a preference for a motion for remand in this court before the motion for new trial is considered on the merits by the district court.
Turning to the merits, we hold that the motion for new trial was properly denied. No showing was made of possible prejudice from the alleged conflict. See Davidson v. Cupp, 446 F.2d 642 (9th Cir. 1971), and cases cited. In any event, Frame‘s exercise of his right to retain counsel after being informed of the possible conflict and its consequences constituted a waiver of any subsequent claim based upon the alleged conflict. United States v. Sheiner, 410 F.2d 337, 341-343 (2d Cir. 1969).
Affirmed.
KILKENNY, Senior Circuit Judge (concurring):
I concur in the result.