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U.S. v. Pavelko

filed: April 27, 1993.

UNITED STATES OF AMERICA
v.
JAMES P. PAVELKO JOHN C. KENNEY JOHN C. KENNEY, APPELLANT



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (D.C. Criminal Action No. 91-00138-02)

Before: Mansmann, Nygaard, Circuit Judges, and Dalzell, District Judge*fn*

Author: Nygaard

Opinion OF THE COURT

NYGAARD, Circuit Judge

I.

On July 25, 1991, a man wearing a baseball cap, mask and black gloves entered the Integra Bank branch office in Charleroi, Pennsylvania, brandished a small silver handgun and demanded the money from each teller's cash drawer. John C. Kenney, and his co-conspirator, James Pavelko, were indicted by a federal grand jury for this robbery. The three count indictment charged Kenney with conspiring to rob the bank; taking $9,919.01 by force; and using a handgun to perpetrate the robbery. Pavelko pleaded guilty and agreed to testify against Kenney. Kenney was tried and found guilty.

When arrested, Kenney was given his Miranda warnings and properly informed of both his right to remain silent, and his right to counsel, court appointed if he qualified. He then appeared before a United States Magistrate Judge and was again informed of his rights, this time under Fed.R.Crim.P. 5(c).

Kenney requested court-appointed counsel, and in response to questions by the court to determine if Kenney was qualified, Kenney replied that "he had not been employed for the past year." He was also required to complete the CJA 23 financial affidavit form which asked, "Have you received in the past 12 months any income from a business, profession, or other form of self employment or in the form of rent payments, interest, dividends, retirement, annuity payments or another source?"*fn1 Kenney answered "No." The Magistrate Judge approved Kenney's request and appointed counsel to represent him.

At trial, the government sought to show partially by circumstantial evidence, that Kenney's source of funds for cash purchases was the bank robbery and not a legitimate source. It called an FBI agent to testify about Kenney's assertions to the Magistrate Judge. Kenney's attorney objected:

Your Honor, we think it's appalling that the government would attempt to offer a financial affidavit which the defendant filled out in order to obtain an attorney and try to use it against him in a trial. We feel that is something that he was compelled to do in order to obtain counsel and therefore, would not be a voluntary statement while he was in custody.

The court permitted the agent to testify. When the government offered to introduce the certified copy of Kenney's CJA financial affidavit, his attorney again objected. The trial court again overruled the objection and admitted the financial affidavit into evidence.

Kenney raises only one meritorious issue on appeal, whether the district court violated his Fifth Amendment privilege against self-incrimination by admitting the testimony of the FBI agent and the CJA 23 financial affidavit into evidence.*fn2 Whether admitting this evidence violated Kenney's constitutional rights is a legal issue subject to plenary review. Tudor Dev. Group Inc. v. United States Fidelity Guar. Corp., 968 F.2d 357, 359 (3d Cir. 1992). We conclude that the district court erred, but that the error was harmless beyond a reasonable doubt.

II.

We need not dwell long on the issue of error. Indeed, the district court would have erred by admitting either the affidavit or the testimony of the agent. A specific objective of an initial appearance is to appoint counsel. We do not dispute that to accomplish this objective, the magistrate Judge needs latitude to question the defendant - even though, obviously, ...


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