Clarence E. Copeland v. United States

Judge, par- WRIGHT, did not Circuit HOLLAND, Appellant, William foregoing ticipate in the order. v. MILLER, WILBUR K. Senior Circuit America, UNITED STATES Judge, prior to his retirement on Octo- Appellee. deny appellant’s ber voted No. 18400. petition. aforesaid motion and Appeals United States Court of

District of Columbia Circuit. 18, 1964.

Dec. (appointed

Mr. Francis Browne C. court), Washington, C., ap- D. for

pellant. Atty., Nelson, Jerome Asst. U. S. Acheson, with whom David C. Messrs. COPELAND, Appellant, Clarence E. Atty., Q. U. S. Frank Nebeker Paul Renne, Attys., A. Asst. U. S. America, UNITED STATES brief, appellee. for Appellee. Hoffmann, Mr. Martin Asst. U. R. S. Nos. 18497. Atty., appearance ap- also entered Appeals pellee. States Court District of Circuit. Columbia Judge, Before Chief Bazelon, Argued Sept. 1964. Fahy, Danaher, Bastían, Washington, Decided Dec. 1964. Wright Burger, McGowan, Circuit Rehearing Petition for en Banc Judges, in Chambers. Denied Feb. ORDER

PER CURIAM. appellant’s On consideration of motion lodged petition for leave to file

rehearing banc, en is it ORDERED the court en banc that

appellant’s granted motion aforesaid and the Clerk is to file directed lodged rehearing petition

lant’s en banc, whereof, and on consideration

FURTHER ORDERED the court appellant’s petition

en banc that for re-

hearing en banc denied. grant BAZELON, Judge, Chief would appellant’s petition rehearing en banc. .See his statement

Hardy Ferguson U.S.App.D.C.-, 343 F.2d 233.

FAHY, Judge, partici- did not Circuit

pate foregoing order in so far as pertains Bazelon, Judge, dissented in the denial

petition rehearing part. en banc. (appointed

Mr. Thomas R. Jones C., Court), Washington, District D. appellant. Hoffmann, R. Asst. U. Mr. Martin S. Atty., Messrs. David with whom C. Ache- Q. son, Atty., U. Frank Nebeker and S. Barry Sidman, Attys., Asst. were U. S. brief, appellee. Anthony Lapham, A. Asst. U. S. Atty., appearance also entered an appellee. Bazelon, Judge,

Before and Judge, Miller, Wilbur K. Senior Circuit Judge. Burger, Circuit Judge: BURGER, Circuit separate appeals Two which were con- solidated for the convenience of the court appeals are before us. The two arise out separate, acts, sep- unrelated criminal separate arate indictments trials. robbery No. 18496 involved armed Telegraph a Western Union Office at 1354 Connecticut Avenue on October 1963; robbery, armed No. 18497 involved dangerous weapon assault with possession firearms, unlicensed all robbery paint connection with the August 15,1963. Appellant store on apprehended for the Au- gust robbery store until his arrest Union after the Western robbery in October. The store rob- bery accomplice was carried out wounding and involved the employee. discussing cases, Before the cir- these cumstances arrest for the robbery Western Union should be set forth, since the arrest for the grew robbery out of arrest robbery. Robbery No. Union 18696 —Western was arrested midnight, within moments after the rob bery; following immediately arrest, was taken posi Western Union Office where tively one of the Appellant was taken to victims. then Third Precinct Police Station and type questioned. He arrived used The victim but not detained midnight give any adequate descrip- between unable Arrangements tion of the second A.M. robber. and 1 presented preliminary- him Appellant’s only claim of error hearing Com United States in his trial for the Western Union reg missioner later that bery is the court’s failure to exclude However, before ular hours. business from witnesses the courtroom hearing, preliminary was set that trial, Henry, co-defendant, en A.M., appellant was 9:30 guilty plea. Henry tered a was the driv police lineup Evan- the where Detective “get away” during er of the hold car the observing concluded, off, him, after up. by The information elicited record, that reasons revealed exploring Henry’s in the course of might appellant implicated in the be guilty plea only remotely related to paint robbery previous Au store testimony appellant’s later offered at gust. Evanoff, ques who then Detective Henry’s trial witnesses who heard appellant station, precinct tioned in the Henry plea. Moreover, spe did not appel that his of testified implicate cifically appellant in the lant did not interfere with bery. Therefore, unlikely it is that being Commissioner, presented to testimony of of these witnesses was hearing appellant’s preliminary since they influenced reason of what heard. approximately scheduled at 9:30. At They were, subject course, of cross- to A.M., appellant confessed to testimony. examination on all of their paint that he had robbed the store. accept We are unable to the contention Meanwhile, police arranged had any prejudice by reason robbery paint victims, one of the store unchallenged presence of these Kuck, come to station.1 during in the witnesses courtroom Hen Kuck at 9:20 arrived there about ry’s plea guilty. of Moreover this con police station, ap as he walked into the greater tention would have no merit had pellant up, “put stood out hand his appellant timely objection to ex * * * apologized to Kuck for the witnesses, clude the since such a motion shooting during is addressed to the sound of discretion up point The facts recited in re Judge. the District Unit Williamson v. upon lation to No. 18496 bear the treat (9th ed Cir. appeal ment later to follow in No. 1962); Moses v. United F. (8th 1961); 2d Cir. government On trial evidence in Cephas, (7th States Cir. connection with the Western Union rob- 1959). bery disclosed two men entered the Bobbery No. Store 18497—Paint midnight; office one of them, employee prosecution’s later identified evidence in connec- appellant, gun carried a tion and forced an with the employee open testimony complaining the safe from which cluded the Kuck, the second man removed appellant. the cash. Police witness who identified promptly appellant upon called and This identification based face- apprehended near the Union Of- Western to-face contact with fice, partly accomplice, observed, among because a third which the witness other waiting “get away” car, things, distinctively decayed in a had driven front teeth. arrest, ap- casing off without him. pistol Before his The shell from the robber’s pellant attempted dispose pistol was recovered from the store and pistol Investigation was recovered the Federal Bureau of ex- pert casing and was having victim as of the identified the shell lineup 1. Evanoff testified asked Kuck but before he .police questioned come after he saw him. weapon importance possibly dropped reduces the from fired arrest at fortuitous circumstance at the time statement, robbery where the accused makes the Union scene the Western g., police car, Apart e. at approximately months later. two ap- station. As scene at the identification his courtroom 487-488, emphasizes, S.Ct. Kuck 371 U.S. at pellant, witness at should seen our concern rather he had testified deliberately time, Robbery Squad non ex- at which the existence vel office ploitative according appellant “put Kuck, in rela- out conduct challenged tion to the statement. his hand at me.” Appellant’s arrest and detention delay be- the contends overnight the Western Union for midnight his arrest tween abundantly supported by bery prob were robbery and the Western Union lawful; “pri able cause no hearing during regular preliminary busi- mary illegality” can be found in them. hours later that violated ness Primary illegality, any if found is to be 5(a) of Federal Rule Rules Crim- here, spelled then be out either must Procedure, inal and that to appellant’s being placed line-up or a witness Kuck was being interrogated. in his In Fredrick- Mallory admissible under v. United States, U.S.App.D.C. sen 77 S.Ct. 262, 266 (1959), F.2d 463 this court (1957), L.Ed.2d 1479 dealt with a statement a defendant line-up a but not elicited any police questioning and ad held its In order to exclude this under Mallory. mission not case to No violate Wong Sun v. United person has held that a under detention (1963), 9 L.Ed.2d 441 we may officers, not be observed must find first il- some carry whose their business is to legal police “primary illegal- action or minds, records, as in well their de ity” challenged apol- and second that the scriptions persons reported, suspected ogy "poisonous is the “fruit” of that activity. actually in criminal involved tree.” say It would be ritualistic formalism to determining person may In an whether there be viewed is “primary illegality” may of which cell but not officers that he apology might line-up pur fruit, be be deemed the same sight reasoning pose. persuasive should not lose of the fact This that the Supreme Mallory sought illegality” “primary no Court in can to to im be said plement congressional line-up technique, inhere in the and we mandate in 5(a) artificial, Rule not permissible. abstract hold that thus We analysis but rather careful exam unnecessary find it to consider whether approach ination of conduct. This was the “fruit” of line congressional purpose serves best to up. opportunity oppressive po foreclose impairing lice methods finally interroga without essential to We come police procedures; and reasonable if, assume, more tion: inter as we Evanoff’s over, approach precludes rogation following line-up “pri facile re by appellate per sort mary necessary courts to illegality,” se rules it becomes to turning, example, precise consider whether elapsed amount of time questioning. between arrest fruit of that In making challenged pre-hear 487-488, U.S. at ing statement, Supreme when time rejected is but one fac S.Ct. at Court tor, important. albeit approach-also defining scope for” concept “but suggested occurring during period of doctrine and transit. the “fruit” pres- appropriate have been criteria: And would still ent on Kuck’s absent inter- arrival need hold that all evidence “We not rogation, yet since it time for simply poisonous tree’ ‘fruit hearing. preliminary his scheduled We would not have come because it only speculate can light illegal but for actions would have to Kuck absent Rather, apt police. the more prior interrogation by Evanoff and con- ‘whether, in such a case is fession the crime. force Whatever the granting pri- establishment of the “cat-out-of-the-bag” argument2 illegality, mary the evidence which determining a nexus between two suc- objection is instant made has been police, cessive confessions to it would by exploitation come of that ille- spontaneous, seem have none as ato gality or instead means sufficient- comment ad- ly distinguishable purged to be dressed to a An victim. primary taint.’ private citizen is a different breed of holding To exclude the under this “cat” the kind involved a state- required (a) we would find that it police. ment to would not been made have relationship if a Even “but for” be- interrogation (b) re- and that interrogation tween and the exploitation sult —a fruit —of deliberate assumed, however, by interrogation police pre- prior element de- liminary hearing. reject exploitation by Wong required We this must liberate contention. Sun is absent. Kuck not used as a police, lever relationship Here not a even “but for” thought witness was in been interroga- is shown to exist between the States, supra, Ricks United where the apology. tion and the The witness Kuck found connection definite between interroga- any had been summoned before and the place tion took and would arrived at have victim, throughout present who was police regardless of events questioning.3 e.g., See, Bayer, * * * United States v. approached the rear of the office 67 S.Ct. Copeland L.Ed. put Mr. out his and hand at me. He said shook.” he was are These circumstances 3. The dissent relies on the exclusion readily distinguishable from both Ricks’ ease, statement and Ricks incriminating apology, which we doing in so fails to mention the in- that opinion, have dealt the text of this criminating not an statement and from the other excluded in statement apology -and was not addressed to vic- however, passing, Ricks. We note in simple tim. It rather a ob- factual opinion the Ricks that failed to discuss servation addressed to a accused apply criteria enunciated witness. Unless we are shown other- Wong Sun; we feel that while those nothing present there is wise—and might required criteria well have exclu- record which even tends to make such a Ricks, they might sion showing prepared are not find —we well have Ricks’ second state- .allowed appellant’s apology anything that to stand. ment gratuitous expression of remorse free- Concerning insubstantiality ly given. such, As more was both relationship police question between the personal independent act than ing present case, upon statement excluded cf. Edwards v. United 117 U.S. 849, the dissent relies. App.D.C. 383, 385, spontaneous The character inde- (1964); Smith v. United 117 U.S. pendent quality App.D.C. (1963), 324 E.2d this case are shown Copeland the fact that affirmatively approached him, Payne (1964); L.Ed.2d 498 erstwhile victim and addressed testimony: shown Kuck’s as I “Just committing magistrate opinion view before a not taken m., than eleven inquire until about 11:30 a. more into the exist- that we need arrest; earlier, illegality,” any since after his at 8:30 “primary hours ence of m., police independent of a. in a we find the illegality. put Evanoff where Detective saw seems to us to horse; him. Evanoff took look from cart before before we suspected appel- poisonous line-up because he find a tree. for fruit we must might say only implicated Moreover, lant see no we on which had a month be to comment taken fruit here would evade regu- concerning procedure questioned earlier. larly employed police. from do not about 8:45 to 9:30. At about We 9:00, deciding normally questions confessed Evanoff that shrink Appel- properly us and had robbed the store. before we should not here, especially lant remained at desk do so consider- Evanoff’s while judicial latter transcribed the ations sound administration confession. At 9:20, recognize Kuck, compel about us to robbery victim, jurisdiction, arrived the other courts sta- holdings response telephone depend who tion in must on our call from guidance, Evanoff. are had been told aware that we have not Ev- coming line-up procedures anoff that Kuck was found violative stat- to the sta- tion, utes or and when Kuck did arrive the Constitution. See Fredrick- recognized According supra. sen lant him. Our view to Evan- testimony, primary illegality said, for a must look off’s defendant “The considering There is the man I now'. turned such an il- around * * legality exploited and there was has Mr. Kuck *. I within the then meaning motioned us Mr. Kuck forward seems to and the de- approach sound fendant said he and is not dic- would like to talk rendered to him dissenting tum and I allowed him to view that should talk Mr. Kuck.” angle. problem desk, attack the As Kuck walked another toward Evanoff’s appellant “put stood and out his hand and We have considered other contentions ” * * * apologized dur- by appellant and find no basis for ing reversal. The confession to Evanoff was obtained Affirmed. 5(a), in violation of Rule Fed.R.Crim.P. ques Detective Evanoff testified that his BAZELON, Judge (concurring, tioning appellant did not “interfere part part): [appellant’s] progress” being pre with Appellant just past was arrested mid- sented a Commissioner since night, 5, 1963, October moments after arraigned was not scheduled to be until nearby Western Union But, office had 9:30. whether or not Evanoff’s arresting robbed. The questioning once officer at took “unneces appel- took delay” sary -to office taking appellant where before positively lant was one of magistrate, always “[t]here remains victims. was then the time was util taken to the Third Precinct Police Sta- po ized to obtain a confession secret tion. step proceeding “The next prior lice after arrest and arraign person is to magistrate’s hearing. ato For a confes * * * judicial quickly possible officer as sion so obtained is not admis * * Mallory States, Mallory.” Spriggs v. United 354 sible under v. United 449, 454, 1356, 1359, States, U.S.App.D.C. 248, 1 L. 251, 118 335 (1957). Ed.2d 283, 286 1479 (1964). But 723, 883, 368 U.S. S.Ct. 82 United 107 274 (1961); Bynum (1961). 7 L.Ed.2d 83 E.2d 767

293 regarding apology timony * * * “obtained did' not offer evi- The Government illegally pro Testi- so soon after the confession Evanoff. dence regarding mony admitted, however, confessions” cured and inadmissible Mallory. purpose of appellant’s apology to Kuck. The court would defeat Killough U.S.App. arguendo the confession assumes (1962) apology 305, 308, D.C. 315 F.2d inadmissible but holds that distinguishable banc).2 sufficiently (en free to be illegality.” primary I “taint holding is inconsistent The court’s disagree. In determining; U.S.App.D.C. Ricks v. product po- was not the lant’s case, In that ignored “exploitation” lice has custody defendant had been in possible on of his effects hours, had admitted one offense three over-night imprisonment, victim, had been questioning by they told had evidence produced questioning the fact that such criminating second so him in a offense a confession moments before the “might that he as well tell truth.” disregards to Kuck. The court also injunction nothing, To this “Ricks said fact that no event intervened —no warn- passed but a few later he [the moments ing by judicial officer, no advice of cor- son-in-law victim’s] counsel, not even “time for deliberate said, ridor and ‘You’re the man that chas- reflection”1 2—between confes- ed me out house the woman sion to Evanoff and to Kuck. We on the second floor screamed.’ 118 U.S. Spriggs stated in “In App.D.C. at 334 F.2d at 966. varying affecting circumstances dif- prior statement as well confes- persons, ferent with differences in their sion and Mal- were excluded on experience, education and other individ- lory grounds. detention, The confession attributes, impossible ual- it is to measure and confrontation victim in with a accurately pressures ain Police Sta- closely parallel the circumstances here. upon prisoners tion under inter- secret spon- to Kuck is no more “a rogation counsel, without relative or taneous, com- friend.” ment addressed victim” —as F.2d at 285. The majority confession to Evanoff characterized —than simply excluded and the statement in Ricks to Kuck “were parts Leyra process.” of one continuous I concur in the affirmance of. No. v.Denno, involving S.Ct. the Western Union rob- bery. 98 L.Ed. 948 admit tes- To U.S.App. admissibility 3. Jackson v. United The court holds that (1959).. legal- depend D.C. does not ity questioning. ques- See Goldsmith v. United of the Since the tioning immediately F.2d so connected 5 L. with the it would follow Killough (1960); admissibility Ed.2d 86 also would depend'on legality line-up. (1962) (en banc). Thus liné-up the court’s consideration of unnecessary and its decision suggests apologies 2. The court re- solely ground apolo- rests on. affirming inadmissible confessions should gy “spontaneous, governed by standards different from comment addressed apparently permissive —and more than— a victim.” applying reaffirming those confessions. meaningful no distinction see justify different standards. would

Case Details

Case Name: Clarence E. Copeland v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 26, 1965

Citation: 343 F.2d 287

Docket Number: 18497_1

Court Abbreviation: D.C. Cir.