*2
FEE,
Before
CHAMBERS
JERT-
Judges.
BERG, Circuit
Judge.
FEE,
JAMES ALGER
Circuit
E.
Charles
with
indicted
Ing
Raymond Wright,
Burton
James
together
others,
twenty
with several
charging
uttering
pub-
counts
forged
lishing of
checks in violation of
65-6-1, A.C.L.A.1949. Smith was
§
Wright
Ing
with
named
first
counts of
indictment. These three
Ing
stood
was found
indictment,
own
duce
in their
behalf.1
witnesses
guilty
on all counts
counts,
colloquy
Wright
and There was
between
five
on all
attorney,
was-
in which
in which it
counts
five
four of the
clearly
de-
joined.
premised
that the failure of
indicated
*3
he
must be
was
overwhelming
fendants
the
themselves to
was
was
the outset
that
judge
argument.
the
crux of the
trial
sustain
to
the evidence
in
gave
the
al-
admonition to
no instruction or
verdict
leged
exclusive of
as to Smith
Attorney.
admissions.
confessions or
was
the conviction
contends that
Smith
up
the
in
These matters will
taken
which
illegal
matters
various
because
First, must be
order
out.
it
above set
claimed
happened
It is
prior
trial.
to
judge,
hear-
noted
the
after a
that
trial
by
perpetuated
ing
that
rulings
these errors were
as to the
confes-
the
voluntariness of
alleged
errors
trial. The
sion,
the
evi-
ruled that it was inadmissible
which
generally
a confession
stem
error,
dence.
was
If this
favor-
was
arraign-
the
in
taken
Seattle before
was
able to
com-
and he cannot
court ruled
The trial
ment of Smith.
plain.
circumstances
There were certain
claim
is
confession,
the
but
taking
which
the
about
of the confession
refusing to
in
that
was committed
error
impel
strongly
to
us
the belief
inspect the confession
permit
ruling.
to
Smith
judge
trial
was correct
in the
into
attempted introduction
before
Only
the salient circumstances will
predicated
Further, error is
Seattle,
evidence.
recited.
was arrested
Smith
ad-
trial court
the
the fact that
Washington,
Friday, March
made
oral statements
mitted certain
He
about three o’clockin
afternoon.
the
had
after Smith
in Alaska
magistrate,
another officer
was
before a
but
hearing, but
waived
questioned by
in-
and an
was
truder,
the officers
supposed
theory
the
that
special agent
who
the
a
was
original
car-
vice of
Board
Smith re-
of Fire Underwriters.
subsequent
be-
admissions
finally
into
ried
admissions,
fused
signed
but
to make
custody and
was still
cause Smith
permit
papers
which
same
contained the
custody.
being
Alaska
returned to
the confession.
information as
again
questioned
He
officers
during
Saturday,
made
he
time
failed to instruct
trial
again
Sunday,
while
Smith
no statements. On
he
jury that the admissions
questioned
custody
about
found
the officers for
must have
voluntarily.
jailor
hours,
Al-
came
when the
one-half
made
at-
specifically
said there was an
though
called
into
room and
this was
Smith,
exception
torney
to see
outside who wished
attention
agent
private
that
thereon,
was advised
no correction
but
based
attorney
Finally,
the United
see
could
instructions.
questioning.
their
Attorney
officers had finished
reference
jailor
later,
failed
fifteen minutes
had
About
fact that
* * *
argu-
to that
line
ister an
Plummer:
“Mr.
tending
about
the constitu-
“Now,
innuendo
ment as
violate
also much
there’s
right
reliability
the defendant
have.
the Government’s
tional
about
know,
Well,—
you
say,
it’s
“The Court:
I
evidence.
only
any-
you
didn’t
I didn’t mention
If
“Mr. Plummer:
have.
evidence
on a
why
they put
why
body,
reliable,
except,
didn’t
didn’t
it was
that
feel
put
Why didn’t
defense.
evidence?
on some
Objec-
no
That
You have
“The Court:
correct.
put
on?
evidence
some
you
choice;
tion overruled.
If it had referred to an
have no
individual,
Kay.
concur,
I
then would
that adduced
Mr.
than
other
Kay:
They
witnesses,
Gov-
“Mr.
in-
refer
three
Government
table,
counsel
dividuals
and no
ernment—
interrupt
Kay:
Mr.
one else.
hesitate
I
“Mr.
reg-
course,
argument,
“The Court: Of
that
I want
but
true.”
Plummer’s
officers that it
permitted
returned and
ror.
repeat
The court
officer
right
was his
that Smith
conversation
in full
waiting
attorney
see
jury.
who
to talk
then
The witness
agent
private
to him. The
then said
testified that he was to interview Smith
attorney
special
few
see
with the
could
about a
occasion,
nothing
minutes.
theOn
second
matter which had
to with the
jailor
that,
remarked
Smith had a
case
on trial. He
after the
testified
attorney,
ap-
shortly
concluded,
see his
peared
after
interview was
then
Smith had
at the door
the room with
made a
statement
effect
attorney. By
cashing
time,
a confession
had been involved
check
*4
Smith,
deal,
he
guilty,
been
simply waiting
and
plead
obtained from
that he wanted to
serve
time,
have it reduced to
did not want to
a stool
writing
sign
pigeon.
The at-
that he could
so
it.
The witness
then went on
re-
torney
employed
peat
who
memory
had been
from
much
substance
of
if there
father of Smith asked Smith
of the matters
contained
the confes-
anything
were
him
see
Smith wished
sion which had been obtained in Seattle.
interrogators made According
about.
testimony,
None of the
to his
all
of
any response,
and Smith then
voluminous admissions
Smith
nothing
at-
him
spontaneously by
there was
torney
to see
were
Smith
volunteered
casually
There was a
about.
conflict
after the discussion
testimony
there was a
originally
as to whether
he
matter for
which
warrant,
as to whether coercion
completed.
discuss
had been
promises
were made.
of lenient
place
treatment
This interview took
on March
However,
Smith was
clear that
is
Po-
officeof
Territorial
brought
Anchorage,
before
never
lice in
after Smith
been
typewritten copy arraigned by
Commissioner until a
States Commis-
original
signed by
Anchorage
sioner at
March
hearing,
him.
At that
the Commissioner read
complaint
to Smith and advised
going
point,
to the
As
second
without
rights. Thereupon,
Smith of his
Smith
subject upon the
into the law the
hearing.
preliminary
waived
before
defendant
see a confession
poison
theory pervades
The
Rule,
error
tree
was no
trial under the
argument
the whole
on this
In
here since the
confes-
feature.
admission
Teets, Cir.,
Burwell v.
sion was refused.
162, this Court said:
days
proceeding
a few
Within
after the
course,
“Of
when an earlier con-
Commissioner,
before
Smith was
fession has been coerced and a later
Alaska, accompanied by
into
taken
private
separated
one cannot be
from the
agent
above
to.
referred
A wit-
one,
earlier
and but
is
a continuation
ness of the Alaska Territorial
tes-
Police
product
and still the
of the earlier
he
tified that
had had a conversation with
coercion,
the later confession
while a detective
Smith
and the
not be used whether
first
brought
special
who had
cluded or not.”
present.
Seattle
from
Counsel for
objected upon
the But
in that case the court found that a
testimony
subsequent
alleged
would relate admissions of de-
confession taken
to an
fendant
night
which
claimed were made un-
coerced confession made the
voluntary.
coercion and were
part
process.
der
not
continuous
was not
of a
It
noted, however,
cautioned the
prior
witness
not
that refer to the Seattle confession. How-
statements were found
ever,
hearing
voluntary.
event,
was held to
have been
testimony
parallel
determine whether or
not
case at
not
bar is
has none
prima facie admissible.
This failure
incidents of connection
shown
assigned
Leyra
Denno,
hold
now
er-
74 S.
A
admonition
Ct.
review of the
to the
United States Attor
ney
specific
however,
record,
facts
indicates that the
instruction to the
required
pro
were'improperly
did
that a defendant
obtained
is not
case,
proof
himself
taint
duce
or in his
this
gained
independent sources.
defense
that the
failure
Furthermore,
not nec-
confession did
cannot be commented
t.2
argumen
essarily
independent
to in
referred
convict Smith.
therefore
testimony was sufficient. We
This Court is of
these
adequate
evidence was
conclude that the
two
of the court to instruct when
failures
admis-
permit
introduction of
the matter
attention
was called to
Anchorage.
sions
constitute, under
situation in this
judge,
concluded
unquestionably, had
case, reversible error.
suffi-
the officer
the volun-
prima
are
cient
facie to establish
that there
is hornbook law
stages
tary
the admissions.
nature
a confes
admission
overruling the
extra-judicial
error
of a
was no
therefore
sion or
the court
defendant. The first
*5
record,
was
nor
satisfy
preliminarily
to strike from the
that the
fusal
must
itself
preliminary
denial of a
error in the
obtained
there
hearing
confession
admission was not
or
jury
of the
presence
fear,
by
promise
the
outside
of favor
or the
force
upon
question
leniency.
voluntariness
satisfied
the
The court must be
surrounding
coercion.
the
of the
lack
that
extremely se-
that
however,
are,
such as to
two
indicate
circumstances
made
An
was
remain.
the confession or
questions which
admissions
rious
freely
voluntarily.
the
phase
This
ception
to the failure
was
they
jury
accomplished
without a
that
the
either with
instruct
court to
trial
presence
outside the
admissions
must find
Anchorage
voluntary.
jury.
Er-
ruled that
fact,
have above
were,
We
of the
failure
that
the
the determination
predicated
instance
in this
also
ror
by
jury,
prima
surrounding
plain
the
circumstances
to
to
the
make
the
States,
general
Langford
instruction
9
United
was a
v.
2. While
attorney
prosecuting
among
defendants
that
the rest
F.2d
the
178
improperly
buried
jury
wit
right
the
of the
to take
the attention
not
drew
to elect
had a
jury
draw-
to take the
should
the
the
of defendant
and that
to
failure
ness stand
against
At no time
but
twice.
inference
stand not once
unfavorable
no
suf
account,
not
to the
was
defense
this instruction
counsel
the
did
that
sufficiently
prosecutor.
ficiently
force
On the sec-
the
nor
connected
comments
interposed
occasion,
reference
itself
the court
ond
ful
to overcome
disregard
jury
attorney
prosecuting
the com-
to
to
and told the
against
government.
Bruno
the evidence
rebut
failure to
ments
their
distinguished,
States,
States, supra,
was
v. United
them. Wilson
requested
cor-
L.Ed.
that
instruction was
37
13 S.Ct.
States,
right
rectly stating
U.S.
the accused not
In Bruno v.
exception
292-293,
was
Since
take the stand.
60 S.Ct.
appear,
could ‘at
did not
in view
“The accused
taken and it
not
it was said:
otherwise,
case,
request
a
that
but not
circumstances of
of all the
own
sufficiently prejudiced
competent
failure
And his
was
defendant
witness.
request
require
create
not
to take
shall
notice
a
such
make
prosecutor
plain
against
error,
any
presumption
Such
as
him.’
remarks of
law-makers. The
stand.
verdict below was allowed to
the command
provide
passing
Congress
only way
ab
court stated
that:
“Had
could
The
point by proper
testifying
tell
should not
saved the
ob-
from
defendant
stention
implied
jection,
given
against
an
the instructions
would not
an accused
again,
judges
their tra
But
exercise
have cured
given
error.
direction
opportunity
jury
duty
guiding
indi
an
make their ob-
ditional
jections
charge
given,
cating
relevant
before the
considerations
jury retired, counsel for
facts.”
defendant stated
on the
verdict
latter’s
At
none.”
implication
voluntary was
prove the admissions
facie
had never
that he
denied
correct.
had made the admissions
and had not offered
excuse or coer-
phase to
But
a second
custody.
pres-
cion while he was in
The
has
Defendant
determination.
ence of the
the time
pass upon
jury
to have
according
these
made,
admissions were
of whether the admissions
gives
officers,
free
were made
him were coerced or
some
they
for the contention that
that,
ly.
jury
be instructed
should
involuntary.
apparently
He
beyond
reasonable
unless
find
busybody
interloper.
Therefore,
and an
freely and
doubt
jury
should have had the matter
give
made,
voluntarily
not
called
its attention so that
any consideration to the admissions
pressures
conclude whether
weighing guilt
defenda
or innocence
person
of this
effect
give
is true that
the failure
nt.3
coercing the
admissions.
The effect
ques
an
submit
such
instruction and
very
this error was
much enhanced
jury
be noted
tion
to the
the failure of the court
to tell the
been called
us if
matter had not
after
the remarks of the United States
excep
court and
attention of
Attorney had been made or in instruc-
tion taken to
failure.
relating
specific incident,
tions
the case
situation
that failure of defendant
does
these
failures were vital.
any presumption
not create
him
weigh
slightest degree against
*6
had
admonished
defendant and
not been
fact
him and that
not enter
should
any question
fact for
of
into the discussions or deliberations of
connection.
consider
jury in
manner.
spe
Attorney had called
Notwithstanding, we
that defendant
think that
to the fact
cific attention
plain
with the
no evidence
contains sufficient
introduced
record
evidence to con-
through it,
‘trickery,
is a
of evidence as
if
conflict
fraud or deceit’
“When
practiced
petitioner
not vol-
to whether
confession is
or his ac-
page
untary,
151,
U.S.,
that it is ad-
At
if the court decides
countant.”
of 348
at
page
Supreme
missible,
be left to the
Question
196 of 75 S.Ct. The
say:
jury,
should
with the direction that
went on
Court
“The
of
issue
reject
part
the whole
the confession if
fraud
deceit on the
of
Gov-
properly
are
it was not the
evidence
satisfied
ernment
submitted to
voluntary
jury,
arriving
of the defendant.” Wil-
act
and the
at its
States,
624,
613,
general verdict,
U.S.
son v. United
162
could have found from
900,
895,
conflicting
16
the Alaskan Territorial permitted much of the sub- stance of matters contained
signed appellant Seattle, which confession because taken in viola- court excluded 5(a) provisions Rule of the
tion Procedure, 18
Federal Rules Criminal admission of this U.S.C.A. Prior testimony, appellant TILLMAN, Jr., Appellant, James objected to its ceipt requested dis- America, UNITED STATES of trict conduct a out of court to Appellee. in order deter- of .the No. preliminarily whether such officer’s mine testimony Appeals Court of fruit violation was the Fifth Circuit. rights appellant set forth *7 June 5(a). Rule The district overruled request. objection denied the the my opinion, many of the facts set forth majority opinion support tend my view the district court should request. appellant’s acceded have hearing, such that after conceivable prob- appellant which the would have ably testified, have appellant’s per- overruled go testimony to before the such mitted on the independent source and from an not derivative violation ruling 5(a). The of Rule visions court, appellant however, placed in a jeopardy. prop- In order
position point erly present compelled appellant have been would the circumstances present
surrounding and of at Seattle his arrest by him. written confession appellant Otherwise,