729 F.

2d 662
15 Fed. R. Evid. Serv. 450

UNITED STATES of America, Plaintiff-Appellee,

v.
Don L. HART, Defendant-Appellant.
No. 82-1637.

United States Court of Appeals,

Tenth Circuit.
March 5, 1984.
Rehearing Denied June 7, 1984.

Peter R. Bornstein of Berenbaum & Berenbaum, Denver, Colo., for

defendant-appellant.
Richard N.W. Lambert, Asst. U.S. Atty., Salt Lake City, Utah (Brent D.
Ward, U.S. Atty., Salt Lake City, Utah, was also on brief), for plaintiffappellee.
Before HOLLOWAY and McKAY, Circuit Judges, and BROWN, District
Judge.*
HOLLOWAY, Circuit Judge.

A jury found the defendant, Don L. Hart, guilty on eleven counts charging
interstate transportation of firearms by a convicted felon,1 18 U.S.C. Sec.
922(g), and two counts charging unlawful possession of a .45 caliber machine
gun.2 26 U.S.C. Sec. 5861(d), (h). 3 The firearms were found in the warrantless
search of defendant's motorhome. On a trip from Idaho to Utah, the defendant
was stopped because the police had reports that he was holding a woman
against her will. This proved not to be true, but in a search following this stop
the firearms were found. This stop was the subject of an earlier appeal in which
we reversed the trial court's decision to suppress the firearms.4

After the police found the weapons, the defendant was arrested and advised of
his Miranda rights. II R. 202-03. The next day he was questioned by Officer

Fox and Agent McClintock. At this time the defendant Hart explained that he
had taken the machine gun as collateral for a $3,000.00 loan. II R. 238, 247.
The defendant also admitted that while in Idaho he and Mr. Hege had loaded
his motorhome with a number of weapons. Id. at 248. Moreover, defendant
admitted that he was aware that it was illegal for him to possess firearms
without a certificate of release, and although he had applied for one, he had not
been granted such release. Id. at 248-49.
3

For reversal defendant contends that: (1) his confession was admitted in
violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966) and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908
(1964); (2) the trial court failed to adequately admonish the jury not to discuss
the case and to avoid media reports about the case; (3) the absence of a
transcript of the voir dire of the jury from the record on appeal prejudiced him;
(4) the trial court made various erroneous evidentiary rulings; (5) the firearms
should have been suppressed; and (6) because the confession was improperly
admitted, there was insufficient evidence to sustain the convictions.5 We
disagree and affirm.I.

Defendant challenges the admission of his inculpatory statement made to the

police while he was in custody. He argues that the record establishes neither
that he was advised of his Miranda rights, nor that he waived them. Moreover,
defendant asserts that a Jackson v. Denno hearing should have been held to
determine whether his confession was voluntary.

A.
5

The record does not reveal the substance of the advice of rights read to
defendant, just prior to his making inculpatory statements to ATF Agent
McClintock and Detective Fox of the Utah County Sheriff's office. Nor does
the record show any express waiver of his rights before defendant made his
inculpatory statements. It shows only that Agent McClintock read to the
defendant from a printed card, and that the defendant then agreed to talk with
the officers. II R. 237-38. There is no indication of what the contents of this
card were. Defendant argues that this is insufficient to show that his
inculpatory remarks were not admitted in violation of Miranda.

Defendant makes this argument for the first time on appeal. He neither made a
suppression motion before trial, see Fed.R.Crim.P. 12(b)(3), nor objected to the
admission of the statement, see Fed.R.Evid. 103, nor moved to strike it during
trial. No explanation or excuse has been offered for these omissions. In such
circumstances where no objection on Miranda grounds was made to the use of

the confession throughout the trial court proceedings, we hold that the
objection was waived.
7

Rule 12(b)(3), Fed.R.Crim.P., provides that suppression motions must be made

prior to trial, and Rule 12(f) provides that failure to make such a motion
constitutes a waiver. This rule applies to confessions allegedly obtained through
unconstitutional means. The advisory committee notes explain that Rule 12(b)
(3)

8
makes
clear that objections to evidence on the ground that it was illegally obtained
must be raised prior to trial. This is the current rule with regard to evidence obtained
as a result of an illegal search.... It is also the practice with regard to other forms of
illegality such as the use of unconstitutional means to obtain a confession.
9

Fed.R.Crim.P. 12(b)(3) advisory committee note to 1974 amendment (citations

omitted); see also 1 C. Wright, Federal Practice & Procedure Sec. 193, at 70304 (1982).6 B.

10

Defendant also argues that the trial court should have held a Jackson v. Denno,
hearing to determine whether defendant's confession was voluntary. 7 However,
defendant's trial counsel never made a motion for such a hearing, and there was
no contemporaneous objection made when the confession was introduced.
Moreover, our review of the record reveals that there was no evidence
introduced to raise an issue of voluntariness.

11

On appeal, defendant urges for the first time that a voluntariness hearing should
have been held. To accept defendant's position, we would have to find that the
trial court has an obligation sua sponte to hold a voluntariness hearing, even
when the defense does not challenge the admission of the confession at trial by
any means, and no facts before the trial court suggest that the confession might
be involuntary. We cannot agree.

12

Recently in United States v. Janoe, 720 F.2d 1156, 1163-65 (10th Cir.1983), we
held that the failure to hold a Jackson v. Denno hearing was not harmless error.
However, the defendant there on the morning of trial orally moved to suppress
his confession as involuntary, inter alia, because it was made while he was
intoxicated; he objected during trial to testimony concerning the confession on
the same ground; and he again objected when the Government offered the
signed waiver of his Miranda rights. Moreover during trial the testimony gave
some indication of intoxication. Janoe, supra, 720 F.2d at 1164 n. 14. We
rejected the Government's contention that it was harmless error to fail to hold

the hearing, mandated by Jackson v. Denno and Sec. 3501(a), on the

voluntariness issue. The issue was clearly raised, and we remanded for such a
hearing.
13

As noted, here the defendant did not make the voluntariness of his confession
an issue by any motion or objection before or during trial, and the record
reveals that no evidence presented raised this issue. 8 Trial courts need not hold
a Jackson v. Denno hearing on their own motion unless there is an issue of
voluntariness. See United States v. Powe, 591 F.2d 833, 842 (D.C.Cir.1978)
("unless the voluntariness question is brought to attention of the trial court, the
trial judge generally is not required to raise the issue sua sponte, and a Jackson
v. Denno hearing is not constitutionally mandated"); United States v. Stevens,
445 F.2d 304, 305 (6th Cir.) (per curiam), ("hearing is required only if the issue
of voluntariness is raised") cert. denied, 404 U.S. 945, 92 S.Ct. 298, 30 L.Ed.2d
260 (1971); Jacobson v. People of State of California, 431 F.2d 1017, 1019 (9th
Cir.1970) ("Only where there is an objection to a confession on the grounds it
is involuntary or where there is present in the record evidence tending to show
such involuntariness, need there be held [a Jackson v. Denno hearing]").
Indeed, Sec. 3501(a) speaks of the court's duty to hold a hearing to "determine
any issue as to voluntariness." 18 U.S.C. Sec. 3501(a).

14

Because there was no issue of voluntariness raised, the trial court had no duty to
hold a Jackson v. Denno hearing and there was no error in not holding such a
hearing or in the admission of the confession.

II.
15

The defendant argues further that in violation of his due process rights he was
denied a fair trial because (1) the trial court failed to adequately admonish the
jury about discussions and communications concerning the case; and (2) the
trial court made erroneous evidentiary rulings. We find neither contention
persuasive.

A.
16

Defendant argues that the jury was inadequately admonished not to discuss the
case and to avoid media reports concerning the case. He says that when the
jury members "were excused from court they were either told by the trial judge
to 'remember what I previously told you,' or to not talk to anyone about the
case." Appellant's Opening Brief at 8. It appears that the judge was referring to
some remarks he made to the jurors after they were sworn and before a short
recess,9 although the record does not actually reveal what the judge said to the

jury at that time. Defendant asserts that we should in any event require trial
courts to give a more complete admonition than was given here.10
17

Our review of the record demonstrates that before the break for lunch on the
first day of trial, the judge gave the jury no admonition other than to remember
what he had previously told them. II R. 21. As noted, we have no record of a
previous admonition on this subject. When court recessed for the day, however,
the judge made a further statement. He said that "[i]t's important that you
remember what I've previously told you. Don't talk to anybody about the case.
Let's keep an open mind. Let's get the whole story. Thank you, and you may be
excused." II R. 128. The following day, at each recess the judge told the jury to
remember what he had previously told them. II R. 172, 214, 268, 277, 312. At
the end of this day the parties had finished presenting the evidence, and the
judge admonished the jury as follows:

18

Okay. Ladies and gentlemen, I'm going to let you go home tonight and have
you come back tomorrow. I'd like you to report at five minutes to 2:00
tomorrow and we'll get at this matter at 2:00. It is particularly important that
you remember what I've previously told you. Don't talk to anybody about this
case. Stay away from any media report on the case if any there be. You've seen
it. You've heard it with your eyes, your ears, that's what's important here so
we'll see you tomorrow at five minutes to 2:00. Thank you very much and you
may be excused.

19

II R. 345. (emphasis added).

20

Throughout the record there is no objection that the court did not adequately
admonish the jurors, and there is no attempt to show prejudice in that respect. In
rejecting claims that failure to admonish the jurors properly in this respect
required reversal, we have found it important that the defendant failed to object
at trial, United States v. Carter, 430 F.2d 1278, 1279-80 (10th Cir.1970), or that
no prejudice resulted from the absence of an adequate admonition, United
States v. Coppola, 526 F.2d 764, 775-76 (10th Cir.1975), or both. United States
v. Borum, 464 F.2d 896, 901 (10th Cir.1972) (objection too late and prejudice
will not be presumed); see also Baldwin v. Blackburn, 653 F.2d 942, 948 (5th
Cir.1981), (claim of error due to failure to admonish some of the jurors must
fail, absent allegation of prejudice) cert. denied, 456 U.S. 950, 102 S.Ct. 2021,
72 L.Ed.2d 475 (1982); United States v. Arciniega, 574 F.2d 931, 933 n. 4 (7th
Cir.), (failure to admonish jury not error warranting reversal, absent some
showing of prejudice) cert. denied, 437 U.S. 908, 98 S.Ct. 3101, 57 L.Ed.2d
1140 (1978).

21

Defendant relies on United States v. Williams, 635 F.2d 744 (8th Cir.1980), in
which reversal was predicated on failure to give any such admonition, although
there was neither an objection nor a showing of actual prejudice. In Williams no
admonitions were given at any point in the trial, and the jury was permitted to
separate overnight after deliberations had begun. The court held that the
potential prejudice was so great that the defendant need not show actual
prejudice to warrant a new trial. Id. at 746.11

22

Assuming, arguendo, that there may be instances when the likelihood of

prejudice is so great that one need not object at trial or show specific prejudice,
this is not such a case. Here the risk that defendant was prejudiced is negligible.
Since there is no objection in our record that the jury was not properly
admonished before the first recess, see note 9, supra, we will not presume that
the judge failed to give an admonition then, particularly in view of his reference
before the noon break the first day to what he had previously told the jurors. At
the end of the first day, the judge told the jury not to discuss the case with
anyone, and to keep an open mind. The next day at every recess the judge
admonished the jury to remember what they had previously been told.12
Moreover, at the end of this day when the parties had finished presenting their
case to the jury, the judge gave a very complete admonition.

23

In such circumstances, we are satisfied that the complaint concerning the

adequacy of the admonitions in no way calls for a new trial.

B.
24

Defendant argues that three of the trial court's evidentiary rulings constitute
reversible error. All three prevented defendant's trial counsel from obtaining
responses to questions. The first two found the question to be irrelevant, and the
third involved a witness' invocation of his Fifth Amendment privilege against
self incrimination.

(1)
25
26

The first ruling challenged occurred when defendant's trial counsel asked
officer Colledge if he believed the defendant's account of where he found the
key to the machine gun case. The Government objected to this question as
irrelevant, and the trial court sustained the objection despite defendant's
argument that the question went to credibility. II R. 230.

27

This ruling is said to be one of three occasions on which the trial judge erred by

limiting the defendant's ability to attack the credibility of Government

witnesses and to demonstrate their bias. Appellant's Opening Brief at 6.
Apparently the defendant is saying that he should have been allowed to show
bias by obtaining an admission from the witness that he did not believe the
defendant's explanation about finding the key to the gun case.13
28

The second ruling of which defendant complains concerned a hair pin. There
had been testimony by a Government witness, Debbi Robinson, that defendant
had opened the machine gun case with a hair pin and showed her the machine
gun. II R. 169. Defendant's counsel sought to have Agent McClintock bend a
hair pin in a configuration that could pick a lock. The theory that the defendant
was trying to develop is not explained and defendant only argues vaguely that
the defense was trying to attack the credibility of the witness. We can only
surmise that perhaps the defendant was trying to show it would be difficult to
open the case with an improvised device. The court sustained the Government's
objection that such a demonstration was irrelevant. Defendant also sought to
have the hair pin itself admitted in evidence, but a further objection was
sustained that the exhibit was irrelevant and that no foundation had been laid
for its admission. II R. 250.

29

In reviewing a trial court's evidentiary rulings we must remember that

"questions concerning the sufficiency of foundation evidence, the exhibit's
relevancy, and the weighing of that relevancy, if any, against possible prejudice
... are [matters] within the sound discretion of the trial court, and we can
reverse only for an abuse of discretion." United States v. Harris, 534 F.2d 207,
213 (10th Cir.1975) (per curiam opinion on rehearing), cert. denied, 429 U.S.
941, 97 S.Ct. 359, 50 L.Ed.2d 311 (1976). See also United States v. Boothman,
654 F.2d 700, 703 (10th Cir.1981) ("axiomatic that the trial judge is vested
with a large amount of discretion regarding the admission of evidence").

30

We cannot say that either of these rulings was an abuse of discretion. As to the
first ruling, defendant's counsel did not persuasively explain either at trial or on
appeal how a response to the question would go to credibility. Like the trial
court, we also fail to see how Officer Colledge's opinion as to the defendant's
veracity would be relevant to the officer's credibility. The facts about the
incident of defendant's production of the key were developed and we cannot
agree that there was any abuse of discretion in not allowing the defendant to
show the officer's doubts about the defendant's veracity.

31

Similarly, the trial court did not abuse its discretion in making the second ruling
on the basis of lack of relevance. Further, there was never any foundation laid
that the hair pin was comparable to any device that had previously been used to

open the case. Without this, it was plainly within the trial court's discretion to
prevent this line of questioning. See United States v. Golden, 671 F.2d 369, 371
(10th Cir.) (trial court has discretion to determine if adequate foundation laid),
cert. denied, 456 U.S. 919, 102 S.Ct. 1777, 72 L.Ed.2d 179 (1982). United
States v. Carranco, 551 F.2d 1197, 1199-1200 (10th Cir.1977) (adequacy of
foundation left to trial court's discretion and overturned only for clear abuse of
discretion).
(2)
32
33

In an attempt to show that the machine gun did not belong to the defendant,
defendant called Robert Jones. Defendant argues that when asked about the
machine gun and its case the court should not sua sponte have "stopped the
witness from answering questions about the green attache case" on Fifth
Amendment grounds. Appellant's Opening Brief at 6-7. Rather the witness
should have been forced to invoke his Fifth Amendment privilege in front of
the jury. Appellant's Reply Brief at 10-11. We are not persuaded.

34

The witness was clearly entitled to invoke the Fifth Amendment privilege
against self-incrimination. It is for the judge to decide in the first instance if a
witness' silence is justified. He may order the witness "to answer only if it is
'perfectly clear' that the witness is mistaken and the answers 'cannot possibly'
tend to incriminate. In making this determination the judge must liberally
construe the privilege in favor of the right it was intended to secure." United
States v. Nunez, 668 F.2d 1116, 1121 (10th Cir.1981) (emphasis added)
(citations omitted) (quoting Hoffman v. United States, 341 U.S. 479, 486, 488,
71 S.Ct. 814, 818, 819, 95 L.Ed. 1118 (1951)). Under this standard, it is clear
that the witness' silence was justified. Possession of the machine gun at issue is
a crime. See 26 U.S.C. Secs. 5861(d), (h). Hence, it cannot be said that
admitting ownership of the weapon or having seen it before could not possibly
tend to incriminate.

35

To accept defendant's argument that the witness should have been required to
invoke the Fifth Amendment before the jury would be contrary to precedent.14
Defendant does not have a right to force a witness to invoke his Fifth
Amendment privilege before the jury. " 'It is well settled that the jury is not
entitled to draw any inferences from the decision of a witness to exercise his
constitutional privilege whether those inferences be favorable to the
prosecution or the defense.' " United States v. Nunez, supra, 668 F.2d at 1123
(quoting Bowles v. United States, 439 F.2d 536, 541 (D.C.Cir.1970) (en banc),
cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971)). Previously
we have rejected a defendant's argument that the trial court improperly

prevented him from forcing a witness to invoke the Fifth Amendment privilege
in front of the jury. United States v. Eitel, No. 75-1537 (10th Cir. Jan. 30, 1976)
(unpublished). We reasoned that the "trial court should exercise its sound
discretion in determining whether a defendant should be allowed to place a
witness on the stand when that witness has indicated he will assert the selfincrimination privilege as to essentially all questions." Id. at 8-9; see also
United States v. Crawford, 707 F.2d 447, 449 (10th Cir.1983); United States v.
Martin, 526 F.2d 485, 487 (10th Cir.1975); cf. United States v. Kerr, 711 F.2d
149, 152 (10th Cir.1983) (not error to prevent defendant from calling witness
who would do nothing but invoke Fifth Amendment as to all pertinent
questions). Other circuits agree that a defendant has no right to call a witness to
force him to invoke his Fifth Amendment privilege before the jury. See, e.g.,
United States v. Harris, 542 F.2d 1283, 1298 (7th Cir.1976) ("The defendants
have no right to have the jury draw inferences from the witness' exercise of [the
Fifth Amendment] right."); United States v. Lacouture, 495 F.2d 1237, 1240
(5th Cir.) (Neither side has the right to benefit from witness' invocation of
privilege), cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974);
United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir.1973) (Defendant has
no right to bring former co-defendant before jury solely to have him claim Fifth
Amendment); Bowles v. United States, 439 F.2d 536, 541-42 (D.C.Cir.1970)
(en banc) (defendant has no right to call witness to have him invoke Fifth
Amendment), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533
(1971).
36

In sum, we find no error in any of the evidentiary rulings challenged by the

defendant.

III.
37

The defendant argues that the lack of a record on appeal of the jury selection
process including the voir dire of the veniremen denies him full appellate
review. Appellant's Opening Brief at 9. He further asserts that the trial judge
ordered that " 'a complete transcript of the trial held in the above-entitled
action' " be transmitted to the Tenth Circuit Clerk. Therefore the missing
portions of the record should not be attributed to lack of diligence on
defendant's part. Appellant's Reply Brief at 8. We disagree.

38

It is the responsibility of the appellant to insure that all materials on which he

seeks to rely are part of the record on appeal. See Fed.R.App.P. 10(b) & 11(a);
9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice Secs. 210.03, 211.05
(1983). When an appellant asserts that his conviction should be reversed
because of a particular error and the record does not permit the reviewing court

to evaluate the claim, the court will generally refuse to consider it. See United
States v. Gerald, 624 F.2d 1291, 1295-96 & n. 1 (5th Cir.1980), (objection to
voir dire of veniremen will not be considered where defendant has failed to
have it included in the record), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67
L.Ed.2d 348 (1981); United States v. Brewer, 630 F.2d 795, 803 (10th
Cir.1980) (no occasion to determine merits of defendant's challenge to affidavit
on which issuance of warrant based where affidavit not included in record);
United States v. Strand, 617 F.2d 571, 578 (10th Cir.), (defendant's challenge to
sufficiency of evidence will not be considered when defendant has failed to
have record transmitted on appeal), cert. denied, 449 U.S. 841, 101 S.Ct. 120,
66 L.Ed.2d 48 (1980). But cf. United States v. Hubbard, 603 F.2d 137, 139-40
(10th Cir.1979) (Although defendant has failed to have entire record and
transcript transmitted on appeal, court will nevertheless endeavor to dissect
issue as presented in the briefs).
39

Since it was the defendant's responsibility to insure that the record is complete
for his purposes, he cannot seek to take advantage of missing portions of the
record. Here defendant admitted at oral argument that no motion to supplement
the record had been made. We find no error on this point.

IV.
40

Defendant argues that the Fourth Amendment dictates that the firearms found
in the warrantless search of his motorhome be suppressed. Appellant's Opening
Brief at 10. In an earlier appeal, United States v. Hart, 656 F.2d 595 (10th
Cir.1981), we reversed the trial court's ruling that the firearms should be
suppressed as fruit of the poisonous tree following an illegal stop. We ruled that
the stopping of defendant was permissible as an investigative stop, and left it
for the trial court to determine if there was consent to the search. We decline to
reconsider our earlier decision.15

41

Defendant now argues that after our remand the trial court did not find that
there was consent to the search; hence the firearms should not have been
admitted. We are satisfied, however, that the trial court did find that the
defendant consented to the search. The defendant had moved again to suppress
the weapons and requested that the trial court rule whether there was consent to
the search. I R. 106. The trial court denied the motion to suppress. I R. 67. In
the court's minutes, it is reflected that the trial court "indicated that consent had
been given." I R. 74. The record supports this conclusion, see II R. 196-204,
222-23, 237, and we decline to disturb it.16

42

Lastly defendant contends that if his confession was not admissible there is
insufficient evidence of his guilt. The argument fails because we are convinced
the confession was properly admitted. In addition there was testimony that
defendant transported weapons from Idaho to Utah, II R. 15-25, 53-59, 77-86,
121-39, 162-65, and that he exercised dominion and control over them. II R. 1525, 77-81, 121-39, 162-65. Defendant stipulated that the weapons introduced as
evidence were found in the search of the motorhome. II R. 219. Additionally,
there was testimony that he possessed the machine gun. II R. 167-71.
Accordingly there was sufficient evidence to sustain the convictions.

43

AFFIRMED.

The Honorable Wesley E. Brown of the United States District Court for the
District of Kansas, sitting by designation

The United States introduced evidence that the defendant was previously
convicted of fraudulent preparation of income tax returns--an offense
punishable by imprisonment for more than one year

With respect to the machine gun the defendant was charged with having
committed two crimes, possession of an unregistered machine gun and
possession of a machine gun with an obliterated serial number. I R. 6

The defendant was sentenced to imprisonment for five years each on counts 1
through 11, to run concurrently. See 18 U.S.C. Sec. 924(a) (penalty of fine not
more than $5,000.00, or imprisonment not more than five years or both). On
each of the remaining two counts, defendant was sentenced to eight years'
imprisonment to run concurrently. See 26 U.S.C. Sec. 5871 (penalty of fine not
more than $10,000.00 or imprisonment not more than ten years or both). The
eight year sentences on counts 12 and 13 were to run concurrently with the five
year sentences on counts 1 through 11

See United States v. Hart, 656 F.2d 595 (10th Cir.1981). The district court had
granted defendant's motion to suppress the firearms, reasoning that "when prior
knowledge of criminal activity is possessed by officers several days in advance
... authority to make an investigatory stop is not present,' " id. at 597 n. 2
(quoting district court written opinion); that the investigatory stop was
pretextual; and that there had been ample time to obtain a search warrant. The
trial court held that the unlawful stop then tainted the fruits of the search
We held that the police did not need full probable cause "to make an
investigatory stop of a vehicle. Such a stop is lawful if the officer has 'some

objective manifestation that the person stopped is, or is about to be, engaged in
criminal activity.' " Id. at 598 (quoting United States v. Cortez, 449 U.S. 411,
417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981)); see also Terry v. Ohio, 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). After holding the stop valid, we
reversed but did not go on to determine whether the subsequent search was
consented to, since the trial judge had not ruled on consent.
5

Defendant also appears to argue that there was insufficient evidence to prove
that the firearms seized in the search of the motorhome travelled through
interstate commerce. Appellant's Opening Brief at 3-5; Appellant's Reply Brief
at 3-5. However in his opening statement to the jury, defendant's trial counsel
conceded this point. Defendant's counsel stated:
The witnesses are going to satisfy you beyond any question of doubt that when
the officers that Mr. Lambert has indicated to you stopped the motorhome and
searched it the guns were present. And I believe that you'll be satisfied by the
evidence that the witnesses are going to adduce that the guns originally came
from Idaho. And Mr. Hart does not controvert or deny either of those assertions
about the interstate transportation counts of this indictment. However, there is
another element of the offense to which Mr. Lambert has alluded and that is
that the guns must have been transported, number one, by Mr. Hart and not
someone else. And, secondly, that he knew that the guns were being
transported and that he was an essential participant in that act so as to bring him
within the prohibitions of the statute.
II R. 8 (emphasis added).
At trial it was defendant's theory of the case that although the firearms were
transported through interstate commerce, he did not possess them. See II R.
381-89 (closing argument of defendant's counsel) He conceded the point that
the weapons, other than the machine gun, were brought from Idaho to Utah.
Defendant admitted this in his confession to Agent McClintock. II R. 250-51.
He also admitted to McClintock he had received the machine gun several weeks
before his arrest from a Bob Jones in Salt Lake City as collateral for a loan to
Jones. II R. 247.

See also United States v. McElroy, 697 F.2d 459, 465 (2d Cir.1982) (at time of
cross-examination of Government's witness, "it was too late properly to make a
motion to suppress [statement allegedly inadmissible under Miranda ]. See
Fed.R.Crim.P. 12(b)(3)."); United States v. Contreras, 667 F.2d 976, 978 n. 2
(11th Cir.); (recognizing that failure to make suppression motion before trial
ordinarily waives right to make Miranda challenge to statements, but permitting
challenge where trial court entertained and ruled on suppression motion during

trial), cert. denied, 459 U.S. 849, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982); United
States v. Badwan, 624 F.2d 1228, 1232 (4th Cir.1980), (holding that under rule
12(b)(3) and (f) failure to raise, inter alia, claim that statements were
inadmissible under Miranda constituted a waiver), cert. denied, 449 U.S. 1124,
101 S.Ct. 941, 67 L.Ed.2d 110 (1981); United States v. Popejoy, 578 F.2d 1346
(10th Cir.) (Defendant's failure to object at trial that her confession was product
of unlawful arrest waived error), cert. denied, 439 U.S. 896, 99 S.Ct. 257, 58
L.Ed.2d 243 (1978)
7

18 U.S.C. Sec. 3501(a) codifies the rule from Jackson v. Denno. Section
3501(a) provides that:
In any criminal prosecution brought by the United States or by the District of
Columbia, a confession, ... shall be admissible in evidence if it is voluntarily
given. Before such confession is received in evidence, the trial judge shall, out
of the presence of the jury, determine any issue as to voluntariness. If the trial
judge determines that the confession was voluntarily made it shall be admitted
in evidence and the trial judge shall permit the jury to hear relevant evidence on
the issue of voluntariness and shall instruct the jury to give such weight to the
confession as the jury feels it deserves under all the circumstances.
(Emphasis added).

Defendant argues that an issue of voluntariness was raised "as that concept
appears in 18 U.S.C. 3501 ... precisely because there was a failure to adjudicate
the issue of whether or not Don Hart waived his Fifth and Sixth Amendment
rights." Appellant's Reply Brief at 7. We are not persuaded. Although the
record does not demonstrate the substantive details of the advice of rights that
the defendant was given immediately prior to questioning, it was testified that
he was read "his rights from a printed rights statement." II R. 237. If a
challenge had been properly made to the Miranda warning before or during
trial, we would have a different case. But no such issue was raised

Our record does not include the proceedings on the selection of the jury, or any
remarks by the judge to the jurors before an early recess. The record reveals
only the following:
THE COURT: Is the plaintiff ready?
MR. LAMBERT: We are ready, your Honor.
THE COURT: Defendant ready?
MR. BARBER: Defendant is ready, your Honor.

(Jury chosen, sworn, and short recess taken.)

THE COURT: Why don't we go ahead, and the record will show that the jury is
present, the defendant is present, counsel are present. Mr. Lambert, you may
proceed.
II R. 2 (emphasis added).
10

Defendant asserts that pursuant to our supervisory power we should require

trial courts to give an admonition similar to that suggested by Devitt and
Blackmar. Appellant's Reply Brief at 9. See 1 E. Devitt & C. Blackmar, Federal
Jury Practice and Instructions Sec. 10.14, at 273-74 (3d ed. 1977). The trial
judges are fully familiar with this type of instruction which is commonplace,
and we agree that an admonition along this line should be given at some point
before jurors disperse for recesses or for the day, with reminders about the
admonition sufficient to keep the jurors alert to proper conduct on their part

11

The Eighth Circuit recently found that Williams was not controlling in other
circumstances. In United States v. Weatherd, 699 F.2d 959 (8th Cir.1983), it
was held not reversible error to fail to admonish the jurors on one occasion
when they were admonished on thirteen other occasions. The court believed
that given such repeated admonitions, the jurors had been "adequately apprised
of their duty not to discuss the case outside the jury room." Id. at 962

12

We note that Devitt & Blackmar approve of the practice of referring to an

admonition previously given, or repeating the admonition in full or in part at
subsequent recesses. It is said to be good practice to repeat the admonition in
full if there is to be a recess over a weekend or for several days. 1 E. Devitt &
Blackmar, supra, Sec. 10.14, at 274

13

The case containing the machine gun was found in the search of the
motorhome along with the other weapons. The case was locked, and the
defendant said it was not his and he did not know what was in it. The officers
took it outside and endeavored to open it. The defendant went into the
motorhome. When he exited, he explained that he had found a key on the floor,
and perhaps it might open the case. The key did open the case. II R. 200-02
Officer Colledge testified that, through a rear window of the motorhome, he
observed the defendant put his hand into his pocket and remove something
immediately before exiting the motorhome and providing the officers with the
key. II R. 222-224. Defendant's attorney was attempting to demonstrate that
Officer Colledge believed the defendant lied when he told the police that he
found the key on the floor.

14

We note also that the witness did actually invoke his privilege before the jury
when asked if he owned the machine gun. II R. 297. The defendant's argument
is that when the witness was earlier asked if he had seen the machine gun case,
he said only "this is the point that I wish to invoke--." II R. 296. Before he
could finish, the court told counsel to put his next question. Id

15

Defendant argues that United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72
L.Ed.2d 572 (1982) was decided after our suppression decision and that Ross
makes clear that probable cause is essential for a valid warrantless search under
the auto exception. This misses the point. In the earlier opinion we held that the
initial investigatory stop of the motorhome was lawful. We left it for the trial
court to decide if the subsequent search of the vehicle was valid as a consent
search, as the Government contended. See Hart, supra, 656 F.2d at 598.
Probable cause is not needed for a valid consent search, which was found here
after our reversal of the suppression order, and our remand. See Schneckloth v.
Bustamonte, 412 U.S. 218, 222 & n. 4, 93 S.Ct. 2041, 2045 & n. 4, 36 L.Ed.2d
854 (1973). Thus, it is irrelevant whether there was probable cause for the
search

16

The vehicle was stopped because of reports that a woman was being held
against her will. Defendant argues that, assuming the initial stop was legal,
when the police learned that the woman was not a captive, the vehicle should
have been free to depart. Thus, any search after learning that the woman was a
willing companion of the defendant was in violation of the Fourth Amendment.
We disagree. As we explained, the trial court found that defendant consented to
the search. Hence, the search did not violate his Fourth Amendment rights. See
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854
(1973)