Present: SEITZ, Chief Judge , ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER, Circuit Judges and WEINER, District judge*fn*
The petition for rehearing filed by Appellee in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
GIBBONS, C.J ., dissenting from the denial of a petition for rehearing in banc.
The defendant Rigoberto Raciel Mesa petitions for rehearing in banc of a judgment of a penal of the court reversing an order of the district court which had ordered suppression of a statement because it had been obtained in circumstances violating the rule of Miranda v. Arizona , 348 U.S. 436 (1966). The case was before the panel on the government's appeal pursuant to 18 U.S.C. § 3731 (1976). There is no opinion of the court. Chief Judge Seitz justified the judgment reversing the suppression order on the factual conclusion that Mesa was not in custody at the time of the interrogation. Judge Adams, expressing doubts as to the validity of Chief Judge Seitz's factual conclusion as to custody, justified the reversal on the factual conclusion that assuming custody no interrogation had taken place. Judge Weiner dissented.*fn1 He would have held that both on the custody question and on the interrogation question the findings of fact of the trial court were not clearly erroneous, and would have affirmed the suppression order. I dissent from the denial of the petition for rehearing for three reasons.
First, I am at a loss to understand the legal justification for either of the judges joining in the panel majority in support of the judgment substituting their findings of fact for those made by the trial court in the hearing on the suppression motion. Their actions in this respect are an instance of appellate disregard of the normal standards of appellate review. I do not think that approach to the task of appellate judging bodes well for the respect for the appellate process by district judges whose work we review, by litigants, or by the public. Undoubtedly all three of those constituencies will conclude, as I do, that had the district court made contrary findings on the critical issues of custody and interrogation the normal deference would have been paid to its findings of fact.
Second, from an institutional standpoint it is fundamentally wrong to let stand a pre-trial judgment reversing a suppression order when two judges cannot agree on a rationale for that judgment. Because this case is before us on an interlocutory appeal by the government, it must go back for trial. If Mesa is convicted he will be the appellant the next time, and he will be asserting the same objection to the admission of his statement. If the panel which considers that appeal concludes that the district court's findings of fact were not clearly erroneous, or if further evidence relating to the circumstances of the interrogation are developed at trial, it will be faced with a determination of the effect to be given to the prior appellate judgment. In my view, the next panel must, as a matter of due process, be free to reconsider the suppression question. An interlocutory judgment not supported by a rationale in which at least two judges concur certainly cannot be treated as law of the case. It announces no law that can bind the rest of the court. Even the government cannot safely rely on the judgment. It runs the risk that if the statement is admitted a conviction will be reversed. But whether or not a majority of this court agrees with me on the future effect of the interlocutory decision, I am completely mystified as to the reasons why, institutionally, a majority of the court would be willing to leave the case in a posture in which the question can even arise. As with the issue of appellate fact finding, I am concerned with the effect on our institutional image of leaving the case in that posture.
Finally, addressing the unique facts of the case, I note that the interrogation, if that is what it was, took place when Mesa was armed, barricaded in a motel room. The interrogator was an agent of the Federal Bureau of Investigation seeking, by psychological means, to persuade him to surrender without resort of violence. Like the three panel members, I agree that the agent's motives were primarily humanitartion. I also agree that the formality of giving Miranda warnings might in those circumstances be counterproductive of the psychological results to be achieved. But Chief Judge Seitz and Judge Adams both make the logical error of assuming that an affirmance would somehow require the police to give Miranda warnings in the situation described. There is another possibility, which in their discomfort with the Miranda rule they chose to ignore. The police, recognizing the humane concerns which suggest talking to a barricaded and unstable gunman in an effort to persuade him to surrender, could simply decide, as they probably did here, that it was better to withhold the Miranda warnings and do without the evidence obtained during the conversation. After all, they would not have had that evidence if they broke into the room and shot Mesa. Thus the opinions supporting the judgment on different theories both are predicated upon a false premise.
I would grant rehearing in banc, and would affirm the trial court's ...