*2 ELY, POPE, Before DUNIWAY Judges. Circuit *3 DUNIWAY, Judge: Circuit robbing of a feder- Evalt was convicted ally in insured bank the small town of Washington, Twisp, of a U.S. violation 2113(a). C. of He was also convicted a § 2113(d) violation of section in put jeopardy in life the teller at the bank. are offense facts of the essential in written confession
stated gave representative Investigation. Federal Bureau handwriting confession, F. paragraph, agent, except for last B.I. initialling (“A. signature, and the E.”) of bottom and at strikeovers by Evalt), reads, page (all each written part, pertinent as follows: “Sept. 9, 1963 Wenatchee, Wash. “I, Vaughn Evalt, hereby Anton following voluntary make the free and George statement J. Foster who has Special identified himself to me as Agent of the Federal Bureau Inves- tigation. I have been that I advised any do not have make statement any statement I that make can against be used me in a court of law. I have been advised that have the I right attorney. to consult an No promises threats or of reward were made to me to make this statement. ****** Wash, Twisp, “I had worked in dur- ing the World War for the II U. S. Forest Service as a look out Birch Mountain.
“I so wanted to build a sailboat and robbing planned on in order I a bank get money buy materials to build a sail boat. decided on a bank'in I Wash, Twisp, I because was familiar with the area. bought the car. I door set fire to Chevrolet “I plates Ray in the back seat from license
sedan
Gross who lives
Yacolt,
purchased
it in
I
car and set fire to
order
burn
Wash.
car
plates.
ago.
up
coat,
My
I left the rain
about 2
home
weeks
Wash,
gloves
stockings
Yacolt,
Yacolt,
and the
left
rubber
silk
Wash.
I
Sept.
driving
kept
the car. I
the hat.
the afternoon of
Chovrolt
Chevrolet enroute
[A.E.]
pistol
money
put
“I
Twisp,
stopped
slept
Wash.
pistol.
along
sack,
pack
evening
Sept.
in the car the
money.
spend
cent of the
one
I didn’t
Chelan,
somewhere
south
Wash.
burning
I headed
the car
“After
“I arrived about 3 miles south of
Trail
Creek
Milk
Butter
Wash,
Twisp,
about
m.
a.
on the
9:30
Pass,
Twisp
Peak,
Reynolds
there
morning
Sept.
Eagle
Trail
Creek
*4
from there
and
pulled
“I
off the road and
and from
finished
Mountain
to Bolder
and then
there,
a beer
and
on
then went
into
there to Stehekin.
Twisp, Wash.
p. m.
8:15
at
at Stehekin
“I arrived
getting
planned
the bank in
on
“I
Sept. 8, 1963.
on [sic]
Wash,
Twisp,
sometime be-
[A.E.]
Wash,
Stehekin,
the
“I
into
went
a.
I
10:15 m. and 10:30 m.
tween
a.
and
morning
Sept.
[A.E.]
Wash,
pulled
Twisp,
10:15 m.
into
at
a.
take me
to find someone
tried
on 9/5/63.
Cascade Pass.
coat,
wearing
sort
rain
a dark
“I was
named
man «asted [A.E.]
“I found a
made,
on
had
I
blue civilian
a black
up
pass,
Ray
started
Burns and
shoes,
pants
tennis
pi
and
black
[A.E.]
Stehekin,
out of
14 miles
and about
a dark color.
by
Sheriff.
I
was arrested
Wash.
orange
wearing
rubber
“I
consist-
Read
Statement
“I
wearing
gloves.
a brownish
I
ing
page &
I have
of this
4 others
hunting cap
silk stock-
with two
black
page &
of each
initialed the bottom
hanging
ings
loose.
&
is true
the cross-outs this statement
High
Olympic
Standard
an
“I had
correct.
pistol
mine.
which was
short .22
Evalt.
Anton Y.
got
bank,
pulled up in front of the
“I
Hobson, deputy
Ralph D.
“Witness:
motor run-
left
of the car and
out
County S.O.
—Chelan
ning.
Agent
Special
George
Foster,
J.
bank, up
ato male
“I walked into the
FBI
up.’
teller,
‘This
hold
I
and
said
is
Wenatchee, Wash.”
money
take
from
said to
all
lay
The
it on
counter.
drawer
before the
shows that
The
also
evidence
gun
I
male teller did this.
my
robbery
pistol, removed
Evalt loaded
right
picked
money
hand and
plates
in-
car and
from the
license
my
up with
left hand.
protec-
seat,
aas
stalled
back
behind the
plank,
against bullets,
4 inch
x
tion
bank,
“I ran or
fast
walked
out
time,
before
and that at some
either
got
recall,
name of
I
bank don’t
robbery,
off
he chiselled
after the
car
into the
and drove
at
out
town
of motor.
number
speed.
a fast rate of
[A.E.]
Twisp,
by
plea
guilty,
I
I
“When left
Wash.
drove
His
rea
was “Not
Twisp
up
planning
going
temporary insanity.”
plea
Road
A
River
son of
Twisp
engine
provided
Pass.
However
form is
federal
that
law,
knocking,
but,
course,
started
lost
[A.E.]
of insan
defense
eAi
pressure,
ity
pulled
encompassed
plea
oil
off on a
so I
side
is
of not
within
stopped
bridge
guilty.
twice,
road and
on a concrete
He was tried
and was con-
victed on
and the inci-
both counts
conclusion
arrest
lawful
per-
of the second trial.
dental search was therefore
missible.
following
Evalt makes the
contentions
junc-
Twisp,
at the
The town
located
appeal:
on this
Rivers,
Twisp
lies
tion
the Methow and
unlawfully
1. He was
arrested with
valley
north
miles
in mountain
a few
warrant,
per
out a
the search
lake is nar-
and east of
Lake Chelan.
pack
carry
son and of a
sack that he was
long,
fjordlike,
miles
row and
some 55
ing
illegal.1
was therefore also
its
from
Chelan at
and runs
the town of
end,
eastern
foot of the Cascade
erroneously
2. The court
received tes-
Mountains,
into
heart of the eastern
timony from the sheriff
certain
part
valley
of the Cascades. The
statements made
parallel
Twisp
roughly
runs
River
illegal
arrest was
and the sheriff did not
separated
Lake Chelan
from it
and is
rights
advise him of his constitutional
high ridge
exceedingly steep
questioning
before
him about the offense.
rough.
The town
is situ-
Stehekin
he made to cer-
3. Confessions that
upper
ated at
end of the lake
newspaper
reporters,
the FBI
tain
Twisp.
about 35 air
miles
agent,
deputy
sheriffs should
to two
community
isolated
which cannot
in evidence
not have been received
be-
reached
road. The
road at Stehe-
illegal,
cause
arrest
he had not
running
twenty
kin
one
some
miles
*5
rights,
been advised of his constitutional
up
so
the Stehekin
to the foot of
River
lawyer,
he did not have a
and the officers
Pass,
Cascade
where it
to
ends. Access
get
did not
with
wife after
touch
his
by
by
airplane
up
town
boat
he asked them to do so. He also claims
tiny
Lake Chelan.
town
The
itself is a
physical
his
that
condition
such
to
was
as
village.
make the confession or confessions invol-
September
on
The
occurred
offense
untary.
1963, Thursday.
a
After Evalt robbed
4. He
not taken
a
was
before United
Twisp
bank,
proceeded up
he
promptly
States
as
he
Commissioner
as
point
burned the
to the
he
River
where
should have
been and before he
inter-
carrying a load-
car. He took to
hills
rogated by the newsmen and the FBI
pack
He
ed rifle and the
sack.
had
agent.
camping
sleeping equipment.
He wan-
during
re-
dered in the
mountains
5. The evidence shows that he was in-
5th,
day
mainder
on
on
of the
and
sane as a matter of law
he
when
robbed
6th,
ap-
and
7th
8th. He made his
the bank.
pearance
evening of
at Stehekin on the
plain
6.
It was
error
for the trial
8th, Sunday.
morning
a
The
he
next
permit
court to
the United States Attor-
Bird,
approached one
a
of the
resident
ney
they acquitted
to tell the
that
area,
by car
and asked Bird to
him
take
Evalt he would
out
walk
of the
a
court
Stehekin to
foot
Cascade
man,
free
while at
the same time the
apparently
Pass. Evalt’s intention
permit
court
refused
defense counsel
pass
hike
over
and down into the
argue that,
acquitted,
if Evalt were
valley
Skagit
of the
River at
town
psychiatric assistance and care would be Marblemount,
away.
several miles
through
available to him
the United
robbery
preceded
bank
News
Navy.
States
When he accosted
to Stehekin.
Evalt
permit
Monday morning, September
error
sheriff
Bird
express
deputies
Bird,
appear-
and
and two of his
behavior
his
sanity.
Twisp
opinion
ance, suspected
his
as to
was the
not, however,
not,
did
He
in evidence
ob
does
seek
were all received
jection.
without
suppress
pistol, ammunition,
money
pack
They
taken from the
sack.
pack
his
had between
sack that Evalt
of Che-
sheriff
Bird caused
robber.
car,
loaded
found in it a
feet in the
notified
County
to be
at Wenatchee
lan
quan-
pistol
substantial
appeared
.22 caliber
and a
person
by
who
radio
Young
tity money.
Mrs.
He then had
Twisp
description
bank
of the
answer the
Evalt,
identify
group,
vicinity.
The
with
Evalt.
The
Stehekin
robber
in the car to
The
immediately
returned
Stehekin.
to Chelan
proceeded
sheriff
brother,
pris-
sheriff and his
with their
Young, who had seen
a Mrs.
he met
where
Young,
oner
without Mrs.
returned
but
standing
outside
his car
beside
Evalt
by
plane
to Chelan
car We-
Twisp
the bank
minutes before
a few
natchee.
robbery,
sheriff
so notified the
and had
seeing
newspaper photograph of
after
upon
ar
Appellant’s
attack
The sheriff and
the burned Chevrolet.
following
contentions:
rests
rest
brother,
pilot, accompanied
who was a
the bank
seen
had never
the sheriff
Stehekin,
Young,
flew
Mrs.
then
any way of iden
and did not
robber
met, by prearrangement,
where
himself,
tifying
nevertheless
him
airport
car and
Stehekin
Mrs.
proceeded
arrest Evalt before
agreed
Bird
driver. The latter had
with
along
brought
Young,
who had been
stall,
proceed
that Bird would
and would
purpose,
Conse
him.
identified
up
slowly
possi-
road
claimed,
quently,
arrest was
ble, so that
the sheriff could overtake
illegal
probable
cause and
without
get
again
away
him before Evalt could
pack
not inci
sack was
the search
into the mountains.
In this Bird was
and so was also
dent to a lawful arrest
successful;
pretext
he used the
of talk-
illegal.
subsequent identification
ing
passing
driver
truck.
Young,
says,
appellant
cannot make
Mrs.
sheriff, accompanied by
brother,
legal. We
either the arrest or the search
Young
driver,
Mrs.
overtook Bird
law of arrest and
do not
that the
think
passenger
and his
about 14 miles
out
neatly formalist
search and seizure
so
Stehekin,
stopped;
where Bird’s car was
ic.3
It was known to the sheriff
sitting
Evalt was
in the front seat of
*6
the
bank had been robbed and that
the
Bird’s car
awith
loaded rifle beside him.
It was
robber had taken to the hills.
Knowing
the
had robbed
known
a man
that
to the sheriff that
believed
Evalt
gunpoint,
description
appeared
did not
bank at
the sheriff
to answer his
Young.
endanger
wish
He there
Mrs.
Stehekin and was in Bird’s car. These
badge
car, wearing
facts,
think, gave
his
fore left the
we
reason
the sheriff
gun
hand,
“progressed
in
able
with a
his
cause to arrest
man.
It was
that
very rapidly”2
Bird car where
to the
known that the man
he
was armed when
sitting.
Evalt was
He told Evalt
that
robbed the
Under
bank.
circumstanc
the
es,
sheriff, got
he was the
out of the
would
for the
Evalt
it
have been a rash act
rifle,
Young
gunpoint,
car at
took the
hand
sheriff
have taken Mrs.
with
him,
him,
identify
opened
help
cuffed
searched
the
him to Bird’s car to
him
1948,
officer,
States,
police
Why
(cid:127)when
333
a
is it
that
v.
2.
and Johnson
says
367,
10,
testifying,
he
never
that
L.Ed. 436 are
almost
92
S.Ct.
68
U.S.
quite
or “ran”?
was there
“trotted”
neither case
fast” or
In
“walked
different.
each,
arrest;
probable
in
for
cause
he arrested
that
The sheriff
testified
3.
(illegal
there
search
it was the
pistol and
he discovered
Evalt after
probable
search) which
for
cause
was no
Young
money,
iden
Mrs.
but before
legal
the'
cause
furnished
assume,
de
but do
tified Evalt. We
cide,
course, puts
This,
cart
arrest.
when Evalt
occurred
the arrest
that
in John-
was said
horse. As
before the
arrest
The
of the car.
was ordered out
“justify
arrest
son,
cannot
one
officer,
Washington
fed
not a
justify
same time
and at the
the search
Wash.,
Sullivan,
eral officer. See State
16-17,
(Pp.
arrest.”
search
Brooks,
745;
1964,
P.2d
State
395
Henry
370)
p.
v. United
See also
68 S.Ct.
1960,
422,
P.2d 735.
Wash.2d
168,
98,
80 S.Ct.
Re, 1948,
361 U.S.
in
Di
The facts United States v.
L.Ed.
L.Ed.2d
332 U.S.
68 S.Ct.
proceed up
Evalt
he was
Twisp
before
disarmed.
would
able to
River
equally
escape
have
rash for the sheriff to
pass.
been
over another
any
approached
have
Evalt
manner
he
did not tell Evalt
that
The sheriff
gun.
other than
the sheriff
When
any questions or that
need not answer
arrest,
had a loaded rifle
made the
Evalt
attorney
an
he
entitled to consult
Having
at his
found the man
side.
that
engaging
these
before
conversations.
radio,
he had been told
about
during
however,
trip,
At some time
prudent
proceeded
sheriff
in the most
asked the sheriff
the latter
Evalt
way
proceeded,
he could
thought
attorney
help
an
that
would
point
think
he had a
we
that at that
thought
him, and the sheriff told
“I
him:
right
open
pack
A
sack.
search
attorney,
procure
that he
an
that
should
legally
person
arrested,
of a
and of his
although
expressed
about his
doubts
possessions,
immediate
is lawful. See
being
perhaps
case,
able to win the
States, 1964,
Preston v. United
376 U.S.
attorney
represent
that
him.
should
364, 367,
11 L.Ed.2d
S.Ct.
represent
Nothing
his interests.”
pack
The contents of the
mere-
sack itself
support
would
evidence
even
ly
already
confirmed the sheriff’s
reason-
unwilling
inference that
Evalt was
right
able belief that he had
man.
ample
talk with the sheriff.
There
The
further
Mrs.
identification
functioning
his
evidence that
mind was
Young
legally
is not'
here.
relevant
normally,4 and
used no
sheriff
pressure
get
him
threats
to talk.
2. The statements made to the sheriff
The inference would have to be that
properly
the arrest were
ad-
after
only willing
really glad
Evalt was not
but
mitted.
to talk.5
arrest,
told the
the time
his
At
yet
name and that he was a
The
sheriff his
law has not
moved to
Navy.
point
petty
arresting
may
officer in
United States
where an
officer
never,
point
trip
following
from
of arrest
The
connection with or
again,
Wenatchee, by car, plane,
arrest,
suspect
questions
and car
ask the
quarter.
offense,
about
took about
two hours and a
first
without
warn
ing
During
trip,
privilege
him of
the sheriff asked Evalt
to remain silent
right
happened
Nothing
how he
rob the bank. Evalt
counsel.
really know,
compels
holding
said
record
didn’t
that Evalt’s
sense,
didn’t
statements
that he robbed the
make
sheriff
were not volun
tary.
sailboat,
bank so that he
could build
sheriff testified that he was
taking
money
he needed
Evalt,
to build a sailboat.
a statement
enough
he did
rest of the conversation concerned
not know
about the crime
*7
planned
get
so;
to
the manner in
do
merely inquiring
to
Evalt
that he was
going
by
curiosity,
out of the
out of
Stehekin area
over
as to how Evalt intended
get
sheriff,
to
Cascade Pass. He also told the
out of
country.
the mountainous
response
inquiry,
to an
that he had Circumstances sufficient
to sustain the
changed
engine
car,
point
not
the
arrest
in the
did
but
to Evalt as the robber.
sheriff,
that he wished
But
that he had
the
thought
he
while he
Evalt
changed it,
had
robber,
he would not
was the
have been
enough
did not know
to
sheriff,
with the
do
inquire.
but
more
would have been
than
yet
He was not
obviously
4. Evalt was
tired. All witness-
dicate that he had the “D.T.s”
while
agree
they
agree
es
on this.
mountains,
But
all also
the
but
that his mind had
he was
coherent
and rational.
cleared before he reached Stehekin.
great
Evalt testified that he drank a
deal
of beer before he robbed the bank. But
5. The Fifth
Amendment
Constitu-
testimony
any
there is no
provides:
that he had
tion
“ * *
thereafter,
period
*
* * *
days,
any person
four
or that
nor shall
any signs
being
he showed
compelled
any
under the
be
criminal case to be
influence of
against
alcohol when arrested or
a witness
himself.”
testimony
thereafter.
compulsion
Evalt’s
would in-
We can find no
here.
however,
position
purpose
participate,
was
in a
accuse. His
nor was he a wit-
to
case;
apparently,
not to
a confession. No determina
ness
his
elicit
guard.
prosecute,
function
tion to
or as to whether
was to act as a
by
by
prosecution
or
would be
state
began
awith
statement
The interview
yet
the United
had
made.6
been
by
reporter
asked
of the
who
most
questions,
perhaps
if he
“that
[Evalt]
confessions.
might prevent
story
some
would tell
thing.”
newspaper reporters
doing
person
the same
a. To
other
from
willingness
talk,”
“expressed a
to
Evalt
radio,
office, by
his
The sheriff advised
length, giving
reporters
and did so at
bringing
he
whom
in a man
he
was
This,
confession.
what amounts to a full
Twisp
robber.
bank
to be the
believed
picture,
his
later became the basis
with
newspaper
the local
office notified
His
newspaper article, published of a
next
they
Evalt, before
He told
in Wenatchee.
day.
lasted
minutes to
interview
Wenatchee,
reporters would
reached
hour, during
half an
which Evalt and the
him,
“it would
and that
want to interview
standing
reporters
up.
were
Evalt
any
necessary
him
to
talk
not
to
be
“very
eyes
tired —and his
had a
tired —
reporters
talk
unless he cared to
all
them,
blurry
sort of a
look in
kind of a
reply.
made no
Evalt
them.”
to
Evalt
—well,
just a
co-
tired look.” He was
wife, both
to call his
asked
sheriff
responsive,
herent
but “He didn’t
during
trip to
and when
Wenatchee
long answers,
keep
make
had to
so
brought
jail
A
into
there.
he
questioning
to
full
draw out
answers.”
call,
try
place
deputy
did
appear sleepy.
did not
But he
her,
as no one answered
unable
reach
phone.
minutes
This was within 15
interview,
of the
Evalt
the end
Toward
party
(2:45 P.M.)
of the time
when the
telephone
reporters
wife.
his
asked the
jail.
arrived at
was booked at
Evalt
any way
talk-
condition
not
He did
jail
at 2:50.
making
call.
ing
their
to them
jail
present
Following
interview,
At the
did
there were
several
one of them
deputies,
agent
reaching
F.B.I.
so,
sheriff’s
home
the Evalt
her
Foster,
reporters,
away.
him
Yacolt,
and two
one with
It took
some
miles
camera,
pictures
through.
get
who took
Im-
Both
of Evalt.
4:15 to
call
until
mediately
doing
booked,
phone,
after Evalt was
reporters
one
were on the
by
They
listening.
reporters.
talking,
interviewed
both
The con-
the other
permission
obviously distraught
versation,
of both the sheriff
with an
story.
agent
Evalt,
woman,
part
F.B.I.
to talk
of their
was used as
brought
consulting
Nothing
Evalt was
at-
a room for
was said about
purpose.
object.
reporters,
torney,
Evalt did
Neither
either
Evalt,
time,
him,
officers told
at that
in their
them to
or
talk
reporters.
that he
Evalt,
need not
talk to the
her.
them
Mrs.
either
Nobody,
particularly
report-
reporters
what
ask
did
one
She
ers,
do,
then told him that he need
talk
he didn’t
she
and he said
should
them,
or that what he
know
said
them know “because I didn’t
where
might
against
Nobody
trying
going
used
him.
then
him.” He was
take
right
making
trip
informed him of
prevent
to counsel.
her
useless
*8
agent
Neither
phone call,
the sheriff nor the F.B.I.
the
one
Wenatchee. After
present during
interview,
was
reporters
but a
office
of the
called the sheriff’s
deputy
present.
not,
sheriff was
He did
left word
he had
Mrs.
and
that
called
Thus,
1965,
119;
we think that
the decision in Es
354
v.
F.2d
United States
Illinois, 1964,
109;
v.
Robinson,
Cir., 1965,
cobedo
State of
378 U.S.
2
354 F.2d
478,
1758,
Cir.,
States,
1965,
84
12
S.Ct.
L.Ed.2d 977
Hiram v.
Cf.
United
9
controlling.
4;
States,
not here
See
v.
Morales
354 F.2d
Kohatsu v. United
States,
Cir., 1965,
Cir., 1965,
United
9
344
9
Evalt.
was not communi
ers were not
so
privilege
cated to
Evalt himself was never
Evalt.
that
constitutional
given
against
opportunity
right
to call his wife.
self-incrimination and
government
reporters
Both
protect
counsel
were
witnesse
did not
his client when he
(Burdeau
s.7
McDowell,
talked to them.
v.
1921,
465, 475-476,
574,
256 U.S.
41 S.Ct.
regard
say that
this
To
we
1048;
65 L.Ed.
United States v. Gold
put
episode
much
is to
with distaste
berg, Cir., 1964,
30, 35;
3
330 F.2d
Unit
feelings
it,
mildly.
about
how
too
Our
ed
Ashby, Cir., 1957,
States v.
5
245 F.2d
themselves,
not,
ever,
a sufficient
are
684, 686).
think, however,
We
that
ground
preju
holding that there was
principle
apply
does not
here. The
Objection
made to the
dicial error.
was
reporters,
they
and the sheriff both
testimony
reporters
the first
knew,
well
could
talk
to Evalt with
testify
ground
on
arrest
out
permission.9
the sheriff’s
illegal
Evalt “was taken
and that
custody
into
without warrant
arrest
them,
The sheriff made
available to
Evalt
being
and without
of his
advised
consti
kept
during
guard
him under
the in
rights.”8
objection
tutional
No
This,
think,
terview.
we
was action
testimony
made to
the other re
state,
therefore
constitution
porter.
objection having
A sufficient
guarantees
al
apply
interview.10
testimony
been made
the first
reporter
stand,
repetition
took
who
interview violate Evalt’s
Did the
report
right?
it was
have reluctant
needed when
second
We
constitutional
(McCor
er
ly
was offered
not. The
as witness.
evidence
concluded that it did
mick, Evidence,
120,
p.
45,
report
(1954);
willingly
n.
to the
that Evalt
talked
City
Smith, Cir.,
Salt
1900,
Lake
v.
8
104
uncontradicted.
So
the evidence
ers is
457,
470-471;
F.
Light
Union Electric
sheriff
he did
that he
told
Snyder
and Power
Co.,
Co. v.
Estate
8
reporters, and that
to talk to
Cir., 1933,
303.)
543
ers,
We
been received.
Escobedo,
require
should not have
supra,
the use
does
ruling
formula;
to confessions.
particular
do not confine this
it does
of a
verbal
government may
holding
magic
is that
with Our
in
words.
It deals
not deal
way
in
that
use evidence obtained
substance,
form.
not mere
urged
It
this
was obtained.
evidence
suspects,
Newspaper
interviews
testimony
that,
inadmissible,
gravest
fraught
however,
with the
are
testimony
harmless,
the other
in view of
justice.
danger
of
administration
record,
particularly
the fact
of
and
especially
probability,
They
create
what he did
Evalt admitted
that
publi
here,
where,
in the
result
insanity.
his whole defense
based
confession,
defendant
that the
of a
cation
question,
pass upon
do not
be-
We
(See
get
a fair trial.
will be unable
judgment
must be
cause
reversed
Texas, 1965,
U.S.
381
v. State
Estes
reasons,
other
as is shown hereafter.
543;
532,
1628,
Re
L.Ed.2d
14
85 S.Ct.
port
President’s Commission
of the
Agent.
the F.B.I.
To
b.
Kennedy,
the Assassination
President
LeWine,
231-42;
1964,
being
Consti
at
What
booked
While Evalt
Pending
Prejudicial Publicity
Agent
reporters,
tutes
interviewed
They
(1965)).12
Cases?,
currency
checking
51 A.B.A.J. 942
found
Foster was
subject
re
against
pack
are further
to abuse because
a list
“bait
sack
in the
law,
porters,
Twisp
un money” kept by
unlike officers
are
bank.
When
legal obligation
protect
der no
the con
awas
substantial
he found
there
that
rights
bank,
Too
stitutional
the accused.
came from the
number of
that
bills
regard
many of
sheriff,
seem to
it as their
them
He
“We want him.”
he told the
right
duty
“get
story” regard
confession
is set
then obtained the
rights they may
point
less whose
invade
above.
assume that
out
We
they may
accusatory
how
invade them.
It was cer
the matter had reached
tainly
part
duty
fully
no
stage.
of the
sheriff
of the
But
advised
Evalt was
agent
permit,
rights
Following
the F.B.I.
much less
re
Foster.
arrange,
advice,
said,
ceipt
for such an
as here
interview
of such
“I
want
occurred,
get
newspapermen
it;
nor to use the
I’d
over with” and “I did
job
do
just
their
you
for them. No more was it
as soon tell
about it.” It is not
duty
prosecutor
claimed,
record,
of the
use the
nor
re
it be on
could
porters as
persistence
witnesses. The
“fruit
the confession to Foster is the
prosecutors
getting possible
poisonous
e.,
tree,”
into
error
of the
i.
of the news
by using unnecessary
ques
the record
paper reporter
interview. Evalt’s consti
rights
tionable
infringed.
evidence is a
constant source
tutional
were not
astonishment to us.
however,
claimed,
prevent
taken before
should have been
cannot
law en Evalt
We
being
permitting
inter
from
before
forcement
such U. S. Commissioner
officers
that,
Cleary
Bolger, 1963,
Foster,
(Cf.
interviews.
v.
viewed
not,
385,
been
should have
U.S.
L.Ed.2d was
confession
371
83 S.Ct.
9
390).
can,
rule McNabb
But
of the
excluded under
we
exercise
States, 1943,
supervisory
power
administra United
U.S.
over the
Mallory
justice
87 L.Ed.
tion of criminal
in the federal
S.Ct.
courts,
States, 1957,
prevent
use of
U.S.
the interview
ing
reporters
government
difficul
no facts
the conclu
man.
free
unnecessary
sion that
in fact
there was
argued,
delay.
Just
case was
officers,
before the
It
still
law
is
following colloquy
court
occurred between
federal,
presumed
state and
both
are
and counsel:
duty.
have done their
is still the law
presume
that we do not
error. We are
[Counsel
“MR. HARRISON:
that,
also entitled to assume
if he could
prior
matter
one
I have
Evalt]
n
delay
have shown that
was unneces-
regard
motion,
to the
this
sary, Evalt’s counsel would
done
so.
question
future treat-
what
didHe
not.14
ment of
defendant
available
of an ac-
event
defendant
deputy
c. To the
sheriffs.
quittal. During
past
first
trial
Deputies Horner and Beck talk
up
reappear-
question
in the
this
came
jail
5:30,
ed to
at about
Evalt
after
times,
jury at various
ance of the
arraigned.
he had been
There is no claim
question
con-
came out
the Commissioner did not advise
it, arid Mr.
cerned
Freeman
about
rights,
required by
Evalt as to his
apprised by Chaplain
I have both been
deputies
Rule 5. The
also advised him.
Navy’s
Albrecht
intentions
as to
They
confession,
full
obtained a
oral
cor
wondering
event,
and I
given
agent
roborative of the
agree
one
Fos
stipulate
might
Counsel
ter and of the
made
statements
jury might
apprised in
some
deputies
sheriff. Both
testified as to
psychiatric
manner that there
treat-
physical condition,
Evalt’s
their
advice
Navy
ment
from the
available
rights,
willingness
him as to
guilty by
he is found
reason
event
talk.
Horner detailed
confession.
insanity.
temporary
I know this
already given,
For reasons
there
gone
Cap-
into
both
us with
error.
tain Albrecht.
Delay
taking
4.
before
MR.
coun-
[Government
FREEMAN:
U. S. Commissioner.
Honor,
Your
answer
sel]
3b, supra.
psychiatric
See discussion under
is there is no
treatment
Carnley
Cochran,
general
tye
U.S.
overturn the
rules
rely.
Lipton
82 S.Ct.
contrary.
8 L.Ed.2d
is not to the
here
v. United
See
Cir., 1965,
It holds that waiver of coun-
presumed.
sel cannot be
It does not
*11
others,
gentleman
hold. But the rule is
countless
this
for
available
52(b)
not absolute. Rule
F.R.Crim.P.
Navy.
provides:
what
that
I don’t see
THE COURT:
affecting
this lawsuit.
to do with
has
“Plain errors or defects
sub-
rights may
although
stantial
be noticed
right.
That’s
It’s
MR. FREEMAN:
they
brought
not
to
attention
guilty
guilty
as far
we are
or not
of the court.”
here.
concerned
I understand
express
That is
exception
THE COURT:
This
an
to
is
Rule
not
is
counterpart
the law.
If there
a verdict
which
of Rule
F.R.
is
guilty
goes free,
Civ.P.,
there is noth-
Judge
note,
he
and
Pope.
cited
We
“
* *
*
way
ing anybody
too,
can do in the
re-
Rule 51
states:
enough prob-
straining
party
opportunity
object
him. We have
a
has no
to
to a
getting
ruling
order,
objec-
lems in this lawsuit without
absence
an
No, I
forbid either
into others.
will
prejudice
tion does not thereafter
him.”
touch or
on the mat-
Counsel to
dwell
think
We
that we should here
ter.”
apply
52(b). During
colloquy
Rule
***(cid:127)**(cid:127)*
quoted above,
problem
brought
have this in
“MR. FREEMAN:
I
attention, although
precise
the court’s
mind, your
have
wish to
Honor:
I
prosecutor’s
argument
form that the
final
trespass upon the Court.
I would want
indicated,
took was
The
not.
court then
jury
to state
their verdict
terms,
in no uncertain
what
its views
guilty
guilty.
must
not
be either
circumstances,
were. Under
these
we
guilty,
If
him
then
find
require
objection,
think that to
an
at the
this
walks out of
courtroom free man.
colloquy,
end of the
is to
form
exalt
over
yes,
permit
THE
Oh
will
COURT:
I
prosecutor
When
substance.
made
you to
I mean
do that.
what treatment
closing statement,
defense counsel
might
be available to him the future was
impossible
with
confronted
an
dilem
Navy
nothing
has
to do
with
already
ma.
views,
He
knew the court’s
this lawsuit.
anticipate
and
objection
could
an
Oh,
MR.
no.
FREEMAN:
would be overruled. He also must have
objection
known that to make an
at that
the alterna-
THE
Those are
COURT:
point
greatly
it
overruled would
you stated,
permit
I
and will
tives that
magnify
importance
pros
of what the
either Counsel
do that.”
said,
ecutor
jury.
in the minds of the
colloquy.
This
Counsel for
concluded the
cannot,
We
circumstances,
in these
accuse
objection
Evalt did not enter
being
him of
judge.
unfair
to the trial
quoted
of the court.
two last
statements
is,
us,
spirit,
This
within the
if not
ruling.
by this
Counsel
Evalt abided
for
proviso
51, quot
letter of the
in Rule
closing argu-
final sentence
ed
Moreover,
above.
when we must
government
ment for
is as follows:
choose
judge
betwen fairness to the trial
you
guilty,
“If
him not
he walks
find
defendant,
fairness
in a mat
man,
courtroom free
out of
ter as
appears
crucial
the result as this
gentlemen,
you
know,
ladies and
be,
to us to
we must choose fairness to
going
are
this man loose
defendant,
turn
who is the one whose lib
again
society.”
erty
stake.
object.
Again,
for
did not
counsel
government
The record indicates that
in-
the court
counsel’s statement
dissenting opinion of our
Captain Herbert
correct. An affidavit of
urges
failing
that, by
Pope
Brother
to ob
Navy,
Albrecht, Chaplain’s Corps, U.S.
ject,
point
counsel waived the
that he
states:
Ordinarily,
now makes.
is and
legal
conferring
object,
“That
should
result of failure to
after
be the
Judge
representatives
Pope,
medical
Com-
as the cases cited
may
mandant,
District,
that,
Thirteenth
well be
in a case in
Naval
understanding
insanity
defense,
my
comparable
is not
that under cur-
argument
Navy
Evalt,
procedures,
rent
Anton
here would not
made
guilty by
prejudicial.
if found
of insan-
We
reason
decide
be-
case
ity,
fore
insanity,
But
sole
would be transferred to the Naval
us.
here the
defense was
argument
Hospital, Bremerton, Washington
prosecutor’s
and the
thing
psychiatric
given
jury
fur-
last
heard
evaluation
—the
*12
was,
substance,
ther
evaluation at the
U.S. Naval Hos-
invi-
counsel—
pital,
convict,
protection
Oakland, California;
to
tation
society,
for the
of
though
jury might
even
the
be-
psychiatrists find,
That if Naval
after
This,
lieve Evalt to have
insane.
been
weighing
evidence,
all available
that
think,
fundamentally
we
was
unfair.
suffering
Anton Evalt is
from mental
disorder,
required
disease or
he will be
this,
as
In
where
cases such
appear
Physical
to
a
before
Evaluation
fixing
nothing
jury
do with
has
to
guilt
Board
jury’s
which will make
penalty,
recommenda-
concern is
sole
secretary
Navy
not concern itself
tions to
or innocence. It should
of the
as
may
punishment
defendant
with what
disposition
Evalt;
of Anton
acquitted,
receive, whether,
he would
if
That if Anton Evalt is found
be suf-
out of
courtroom
or would
“walk
this
fering
disorder,
from mental disease or
they
a
would “turn
free man” whether
undoubtedly
he will
transferred
be
again
society.” The
man
loose
Hospi-
to a Veterans
argument
prejudicial,
Administration
prosecutor’s
was
handling
prejudice
tal for
enhanced
and treat-
further
defense counsel.
;”
court’s limitation on
ment
rulings
effect of the
court’s
jurors
And
two
that
affidavits
state
govern
justice in
of
tilt the scales
them,
jurors,”
each of
and “a
had and
few
favor,
a manner and
ment’s
and this in
at
expressed
sanity
as to
doubt
Evalt’s
at
impossible
a
that
de
time
made it
robbery
felt,
the time of the
the balance. The
fense counsel to redress
prosecutor's closing statement,
of the
upon
pros
imposed
court
should have
they
They
had no choice but to convict.
ecutor the same
as to the
restriction
that,
guilty
further state
if
had known that
of
as it im
effect of verdict
treatment, they
This,
think,
Evalt could
posed
would
receive
we
defense.
acquit.15
permitting
have voted to
preferable
both
sides
pass upon
1962,
569,
Gardner,
15. We do not here
vexed
v.
230 Or.
371
State
question
foregoing
as
whether
affidavits
of the
P.2d 558. Under most
jurors may
impeach
probably
cases,
received
be
would
affidavits
Pless, 1915,
verdict.
McDonald
im
See
v.
both inadmissible and insufficient
peach
264, 267,
783,
238 U.S.
35 S.Ct.
59 L.Ed.
the verdict
cite
admitted. We
Hyde
1912,
1300;
States,
illustrating
v. United
225
our
view
them
347, 384,
793,
prejudicial
hap
U.S.
32 S.Ct.
L.Ed.
56
as to the
pened
nature
what
1114;
1892,
States,
figment
Mattox United
v.
146
here is
no means
140, 149,
imagination
U.S.
13 S.Ct.
L.Ed.
36
those
the oversensitive
917;
Reid,
ap
ivory
United States v.
U.S.
53
of the
who inhabit
tower
1023;
pellate
[12 How.]
13 L.Ed.
bench. Further
confirmation is
States,
Cir.,
portion
Walker v. United
9
298
the record that
found
217;
trial,
F.2d
v.
Medina
United
9
at which the
relates
first
Cir., 1958,
Bryson
They
jury
agree.
254 F.2d
v.
was unable
sent
228;
States, Cir., 1956,
judge, during
United
9
549 “grounds language ror in the counsel in to state the used stated Rule addressing jury. It is said that the therefor.” argument was unfair and erroneous in There two occasions here when particular case because defense duty. with this counsel confronted might insanity verdict to the The first when the court said be its as well affected notions you prosecutor: yes, permit “Oh I will guilty a not mere- whether would verdict to do when that.” The second was large ly put and in defendant argument At did was made. neither time position crime. to commit further Judge object. counsel As Clark noted Co., in Reck 2 v. Pacific-Atlantic question S.S. as I need reach the Cir., 866, 870, reason 180 F.2d there is insanity whether defense makes objection “[Sjince timely for it such a Assuming special lan- case. undoubtedly could would have led guage argument preju- used in here was an correction of whatever dicial, yet immediate appellant am cannot satisfied may error of form have been disclosed.” appeal. such a on this make contention objection on made an elementary Had the defense It the trial above, cases, cases, mentioned the first occasion criminal civil as well repeat necessary to party would not have been must the court make known Terry, People objection Cal.2d court it. See 57 “his to the action Cal.Rptr. grounds P.2d 21 370 and his therefor.”3 Such made, objection no requirement respect was ever But to a claim grounds impropriety of this to the of misconduct Devine v. of counsel. suggested. argument Under States, Cir., was ever United 278 F.2d 556; States, the defendant waived Cir., these circumstances Orebo v. sought urged. objection 747, 749; now be F.2d Pacman v. United Cir., alluding opinion, after majority jus- made, attempts to easy enough us, sitting point here where by applying do, Rule theory tify we to evolve esoteric its conclusion is a That insanity impermissible “plain rule. (b), defense makes error” to, words ordinarily acceptable properly what would resorted rule *15 expected. by Judge Sanborn, have been there But when cases have be tried (Page judges, rulings generally v. “plain errors.” district whose and vital 810.) The moment, spur Cir., must come on F.2d of the rule, application spot. question standard, and on for the as to sound suggested (in plain whether stated distinction rule also of the error insanity defense) Judge Lindley court in United case when is for the is a 4-5, Cir., very Vasen, valid one me seems to to be close v. States all, lightly jury by invoke one. After must not itself would as “We follows: * * * seriously guilty” only 52(b) know that would de- “not mean Rule noticed, release, prose- in the prejudicial fendant’s And what will be error here, if objection.” cutor said was more than that. If The error absence of presents special any, plain If situation factors it is the nor vital. was neither duty object, but, anything clear, of counsel not neither it is that is prius’ ‘puisne’ specific judge judge legal principle
to a ‘nisi fact con- or some —a Only appellate principle. —to have been successful so trolled such ‘Mastering modestly courts, believed, the lawless science of our are so it law, endowed, this has a sub- and even been myriad ject possible precedent, sharp That eodeless of discussion of single doubt, instances,’ and, peradventure, That wilderness should body cautiously grano has —that he the whole of the law stated and taken ‘cum ” fingers’ ends, speak, at his so to in- salís.’ application, stantaneous and automatic motu, having quoted ex language mero without his atten- 3. The is from F.R.Civ.P. specific tion directed counsel some Rule 46. interposed judge parties nor nature of defense either considered argument trial, re- prejudicial that the cannot believe erroneous testimony newspaper ceipt time. men’s require prejudicial as to reversal so whole, balance, On the fairness here. parties, all Government defendant guaranteed alike, adherence Surely procedure. standard rules duty respect
is the of this court judicial system.
needs an effective Any ruling chance which a dis- reaches orderly result, one reached disregard proper pro- of all standards cedure, system, is a our disservice to litigants. to all SECURITIES AND EXCHANGE COM MISSION,Appellant and Cross plain is to If the error rule be resorted Appellee, this, to in all rules such eases non-vital requiring objections may as well be HIGASHI, away. Appellee appellate Charles Y. thrown Just because the Cross- Appellant. something in trial to court observes which, opinion, objection in its could have JENKS, Appellant, Don made, been no reason is furnished for applying “plain a rule error.” SECURITIES AND EXCHANGE COM wording majority opinion of the MISSION, Appellee. me in some leaves doubt as to whether Nos. degree any the result reached is based testimony on the admission of the Appeals United States Court of newspaper reporters. place At one Ninth Circuit. opinion respect states with the inter- March reporters: newspaper view with the “Did the interview violate Evalt’s constitution- right? reluctantly
al We have concluded opinion it did *16 ing government may is that the not use way
evidence obtained in the urged
evidence that, was obtained. It is inadmissible, testimony was harm-
less, testimony in view of the other record, particularly of the fact
that Evalt admitted what he did and upon insanity.
based his whole defense pass upon
We question, do not be- judgment cause the must be reversed for reasons,
other as is shown hereafter.” appellant
In view the fact that the apparent eagerness undertook to every
make confessions of the events to sight
one in would listen and in who view not.” The notes then willingly reporters that Evalt talked to that was told he did not have place to talk to them. At another opinion it is stated: “We hold that the testimony reporters should not ** * have been received. Our hold-