United States v. Elmer Wayne Crisco

725 F.2d 1228 UNITED STATES of America, Plaintiff-Appellee, v. Elmer Wayne CRISCO, Defendant-Appellant. No. 83-5016. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 6, 1983. Decided Feb. 14, 1984. 1 Hector E. Salitrero, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee. 2 Richard C. McCue, San Diego, Cal., for defendant-appellant. 3 Appeal from the United States District Court for the Southern District of California. 4 Before SCHROEDER and CANBY, Circuit Judges, and PANNER, * District Judge. PANNER, District Judge: 5 Elmer Wayne Crisco appeals jury convictions for conspiracy to possess cocaine with intent to distribute and use of a communication facility to facilitate the possession with intent to distribute. The issues presented on appeal are: (1) whether the district court should have suppressed defendant's statement which was made prior to advice of rights as the product of custodial interrogation; (2) whether the district court properly substituted an alternate juror for a regular juror after deliberations had begun; and (3) whether the district court abused its discretion in denying defendant's motion for mistrial. For the reasons set forth…

Elmer Wayne Crisco appeals jury convictions for conspiracy to possess cocaine with intent to distribute and use of a communication facility to facilitate the possession with intent to distribute. The issues presented on appeal are: (1) whether the district court should have suppressed defendant’s statement which was made prior to advice of rights as the product of custodial interrogation; (2) whether the district court properly substituted an alternate juror for a regular juror after deliberations had begun; and (3) whether the district court abused its discretion in denying defendant’s motion for mistrial. For the reasons set forth below, we affirm defendant’s convictions.

FACTS

On July 21, 1982, Claire Walker contacted defendant Elmer Wayne Crisco, who agreed to assist her in obtaining cocaine for undercover Drug Enforcement Administration Agent James H. Clem. Crisco introduced Walker to two prospective suppliers of cocaine.

The next day, Crisco and Walker met with Agent Clem and an informant at a park. From inside his vehicle Agent Clem showed Crisco $40,000 cash as the purported *1230 $60,000 cocaine purchase money. Crisco said, “That’s all I need to see.” Crisco also…

dissenting:

I respectfully dissent. While I agree fully with Judge Panner’s treatment of the issues of the motion for mistrial and the substitution of the alternate juror, I part company on the Miranda question. In my view, the district court’s finding that Crisco’s statement was not the result of custodial interrogation is clearly erroneous.

There can be little question that Crisco was in custody. The agents sought him out at his work place, informed him that they had a federal warrant for his arrest, and *1234 told him that he was under arrest. Surely at that point a reasonable person would believe he was not free to leave. See United States v. Curtis, 568 F.2d 643, 646 (9th Cir.1978); United States v. Luther, 521 F.2d 408, 410 (9th Cir.1975).

The majority, like the district court, interprets the comment of Agent Clem as an explanation of the arrest in response to Crisco’s protestations that the agents had the wrong man. But the comment of Agent Clem went well beyond the kind of utterance “normally attendant to arrest and custody.” See Rhode Island v. Innis, 446 U.S. 291, 301 , 100 S.Ct. 1682, 1689 , 64 L.Ed.2d 297 (1980). Agent Clem said: “Hey, you met with me — for the…