Joseph C. Amsler and John W. Irwin v. United States

and the totality circumstances of these regularity court in state

presumption of appellant proceedings, conclude we showing a his burden not sustain did right Ely, Judge, dissented Circuit Cir., Crouse, relief, Miller v. part. cor- court and the prior procedural state rectly held by the volun- defects waived court guilty. v. tary entry plea Pearce supra. Rodriguez, Cox, supra; v. Guerra Affirmed. Irwin,

Joseph and John W. C. AMSLER Appellants, America,

UNITED STATES Appellee.

No. 19509. Appeals

United States Court of

Ninth Circuit.

May 3, 1967. Rehearing

As Amended on Denials of

July

Edgar Boyko, W. Paul Michael Rot- appellant, berg, Angeles, Cal., for Los John Irwin. Cal., Angeles, Lavine,

Morris Los appellant, Joseph Amsler. C. Hills, Neeb, Beverly Jr.,

Robert A. Cal., Crouch, Jr., Los An- Charles L. geles, Barry appellant, W. Cal., for Kee- nan. Real, Atty., U. John K.

Manuel L. S. Atty., Chief Kamp, Van de Asst. S.U. Fareed, Div., Asst. Crim. Donald R. Atty., Atty., U. Los An- S. Chief Trial geles, Cal., appellee. Atty., Byrne, Jr., U. S.

Wm. Matthew Atty., Brosio, U. S. Robert L. Asst. Fareed, Div., Chief A. Crim. Donald Atty., Atty., Los Asst. Chief Trial U. S. rehearing. appellee Angeles, Cal., for on ELY, BARNES, CECIL,* and Before Judges. Circuit Judge. Circuit CECIL, Senior Clyde Joseph Amsler appellants, The Irwin, re hereinafter and John William Amsler and or as ferred to as defendants Irwin, respectively, indicted were for the Court District' United States California,** Cen District Southern indictment Division, a six-count tral alleged kidnapping arising out of transportation Frank Sina- interstate * ** Cecil, of California. Judge, District Lester Now the Central L. Senior Circuit amended designation. Circuit, sitting by (Sec- Title U.S.C. Section Sixth 89-372, 291(a), 294(b) Mch. (d), P.L. tions C.) Title jointly-

tra, 292(b), Oregon Jr.1 Amsler and Irwin were Section Title U.S.C.3 Worthington Barry California, Circuit, indicted with one the Ninth isas regularity question Keenan. there is no of the assignment of the under the statute. jointly to tried The defendants were jury. is claimed that because the trial jury returned verdicts state, was from out of the the trial was against guilty on all Keenan Amsler not held within the limits the state guilty six counts. A verdict return- where the crime This was committed. ed Irwin three on counts one and personnel claim is without merit. The through Judgment six. entered on distinguishable of a court is from its the verdicts all three defendants territorial limits. is further claimed Sepa- imprisonment. were sentenced to 292(b) that Section is unconstitutional. appeals perfected by rate each of sup- No cases cited us appeal the defendants but Keenan’s port of nor this contention have we subsequently motion. dismissed on his any. nothing found findWe inconsist- jurisdiction The District Court had provision ent between that a dis- try the defendants the indictments judge, appointee trict resident under Section Title U.S.C. may assigned district, one under jurisdiction ap- This Court has statutory authority to a different dis- peals 1294(1), under Sections n circuit, trict in the same and the con- Title U.S.C. requirement stitutional that a criminal principal presented issues case be tried within the territorial lim- appeals procedural on these relate to its the state where the crime was questions. outset, At counsel committed. See McDowell v. United challenges jurisdiction Amsler 596, 598, 159 U.S. ground trial court on the that the trial 40 L.Ed. Lamar v. United alleged was not conducted where the 103, 117-118, required crime was committed as 912; “Assignment 60 L.Ed. III, Article Section of the Constitution Judges Districts,” by Judge to Other of the United States. is not claimed Yankwich, 481, 3 F.R.D. 486. Nor do that the trial held ter was not within the anything we find in the of rules the Cen- ritorial limits of the state within tral Division the of of Southern District 4 the crime committed. The case was prevent California that would the Chief judge tried of before a district the Judge designating of the circuit from United District Court for the States judge try out of state the case. Rules assignment by Oregon, District of arbitrary of court are not that and in- Judge Circuit, Chief of the Ninth under flexible. If there is a conflict between 1. At was driven gunpoint, where communication with Frank he was held Avenue Nevada and through him from his room to with a black mask over his they They ing pills atra room Keenan California about room forced John took with they taped The ransom Irwin. lie and then forded him to Canoga Park, California, 9 of (Lake Tahoe). $20 Sinatra, finally Amsler, p. captive. Sinatra, forced m. on December from Sinatra’s wallet at down Foss, to a house on Mason his hands both kidnappers Keenan’s car. Here Jr., on the lie who take two dress and armed, eyes. on the At money was in back seat Stateline, gunpoint 8, through Sinatra entered set where sleep 1963, eyes. floor took Sin Sr., up 4. 3. 2. “The Trial States District Assignment.” unharmed. sign temporarily any circuit trict within the circuit.” be held Central ber Crimes jjs picked up Chapter “(b) ^[*] 11th, The chief # to hold public interest, Division: ” II, shall in about 12:45 a. of Rule all a Sinatra, district court judge Crimes, State where Court 3, “New Local district designate of Jr. was released Rules of m., a * * * Rules, judge circuit committed; in on Decem California, Governing the said and as- United may, shall dis-

43 demand- interstate commerce cations in ing statutes, the statutes rules and 875(a). money under ransom Section judge from prevail. The must district charged all three defendants Count six designation sitting by Oregon, disposing receiving, possessing and jur- with California, of had District Southern money of in violation Section of ransom try the case. isdiction charges separate of- Each count challenges in- for Amsler Counsel claim no there is merit fense and duplicit- ground is that it on the dictment duplicitous. the indictment was kidnap- that the ous. It is claimed first 750, States, U.S. United 328 Kotteakos v. 18, 1201, ping statute, Title Section 1239, 1557, not in L.Ed. is S.Ct. 90 charged U.S.C., all the acts embraces charged one point. There indictment indictment in all of counts Supreme conspiracy Court whereas one there is but crime and that therefore eight conspiracies found there Secondly, claimed that involved. conspirator to all common one conspiracy indictment count them. merged other sub- into the second and of the indictment Appellant stantive counts claims that Amsler Amsler cannot be the defendant in not error the trial court committed guilty conspiracy substantive granting his motion for severance arising out of the same transac- offense court his trial. The discretion grant deny tion. under a severance disturb be 14 of the F.R.Cr.P.5 will established federal is well discretion such ed an abuse of unless may person practice that a criminal States, Opper United is shown. v. conspiring of to commit an convicted 158, 84, 101. The L.Ed. S.Ct. against fense United States and also has made mere fact that one co-defendant committing offense substantive incriminating statements, co-de other subject conspiracy. which is the fendants, require that sever does not 640, States, Pinkerton United 328 U.S. v. long granted as the ance be so rehearing 1489, 66 S.Ct. 90 L.Ed. jurors such properly cautions L. denied 329 U.S. 67 S.Ct. to be considered statements are 697; States, Ed. v. United Pereira Opper v. the other defendants. 435; 98 L.Ed. Cal supra. caution was Such lanan v. given abuse of It is not an in this case. rehearing 5 L.Ed.2d though deny even discretion severance denied, 365 5 L. co-defendant, not of one the confession States, 9 Ed.2d Toliver United though incriminating, binding upon, conspiracy Cir., F.2d 742. The count evidence, defendants, is received in other (Count 1) of indictment laid under is proper precautionary are instructions charges Title Section U.S.C. States, given. Delli Paoli v. conspiracy commit under to offenses 278; 294, 1 L.Ed.2d 232, 77 S.Ct. code, three sections criminal Cir., Howell, 3 United States v. (a), 1201(c), 875(a) and 1202. Section Cir., Costello v. conspire makes to which an offense to it 830, 79 cert. den. 255 F.2d 1201(a), repeal violate Section did rehearing den. 52, 3 L.Ed.2d by implication. Section 371 Count 2 1015, 79 S.Ct. 359 U.S. charges the napping under Section of kid substantive offense com error No 3 L.Ed.2d 901. Counts 1201. denying therefore, mitted, severance in charge sepa three, four five three and spite fact trial, in Amsler’s transmitting eommuni- rate offenses of may elec- together, order an the court appears trial “If or the 5. a defendant counts, grant separate a trials of by joinder government prejudiced or tion is provide what- or of defendants severance in an indict- offenses of defendants requires.” justice joinder relief ever other such for ment or information or panel jurors. confessions of the prospective other defendants were of 37 The given challenges received in evidence. were defendants ten to jointly, be exercised and one each to be assignments One of error made individually. government exercised The on behalf of Amsler relates to method given challenges. peremptory six selecting jury, as the referred to government defendants, The and the objection System.” “Arizona The challenge jointly, each had one primarily directed to the manner ex- jurors. four alternate When all of the ercising peremptory challenges. challenges exercised, first 12 24(b) prescribes of the F.R.Cr.P. challenges pass up called all made challenges number of be al- shall jury. next four The were the alternates. government lowed to the and to the de- fendant or the defendants but it does not argued Defense counsel prescribe they how shall be exercised. jurors twelve should have in been seated selecting method be used in jury challenges box exercised al jury judge was defined the trial at ternately against replace panel opening session of the said: trial. He ments when one was excused until jurors passed twelve were seated who had “Now, say I will in to counsel challenges. qualifying all manner my Clerk, in- directions to I have jury largely discretionary is with the initially dicated that he should draw judge. specific pre trial No method is prospective jurors. That tell will “* * * judge scribed. theAs said: you provide ulti- that will for the at so all times counsel knows who their provide mate That six will jury going be, ultimate is not government challenges. pro- That will exercising challenge knowing challenges vide 10 defendant you might subsequently.” who draw We joint- Court directs that exercise System” think the “Arizona used in as ly, provide and it extra will one selecting jury eminently fair to challenge for each defendant and for judge both sides and the not err trial did prerogative. him to exercise in own respect. system in this A similar provide It will for four alternates qualifying jury approved challenge by one the Government and Pointer v. United challenge by one the defendants to be 38 L.Ed. 208. jointly alter-

exercised as to the four mind, nates. So with that I will Appellant, Amsler, further prospective ask the Clerk call 37 claims that the trial court in refus erred jurors.” ing give defendants the names jurors prospective The trial conducted the voir addresses of all of the giving ample examination, prospective dire counsel witnesses least three opportunity suggest days required questions capi further in all jurors. (Section prospective to be asked of the If tal cases. 34326 Title prospective juror U.S.C.) Kidnapping capital was excused for cause is a offense only another one was called so that when the which the vic those instances completed voir dire examination was tim is not The in released unharmed. prospective jurors allege there were who dictment did Frank 37 herein not passed had been Jr., for cause. the unharmed and Over was released objection upon harm, proof therefore, counsel for all defend- ants, judge the trial directed the could the in defense have been submitted under challenges peremptory dictment, appellants counsel to exercise the re could have alternately government against that no the ceived death sentences. The fact person charged veniremen, 6. “A wit- with treason or other a list of and of the the capital produced prov- offense shall the trial at least three entire nesses to be on days ing indictment, stating place before commencement of trial fur- the the be copy nished with a of the indictment and abode of each venireman witness.”

45 608, grounds 332, 87 trial at the such evidence was introduced 784, rehearing den. 319 U.S. in- fact that the L.Ed. not the does eliminate 1727; v. Wilson supported such 63 87 L.Ed. S.Ct. would have dictment cert, (C.A. 5), States, 104 F.2d 81 im- United possibility of an It sentences. is the L.Ed. in- den. penalty the position under of a death App. States, dictment, produced at Brown v. United the not evidence responsi- It the is trial, the D.C. 136. if accused the which determines bility interpret the procedural benefits is entitled to indictment, is what offense determine capital eases. Counsel available charged trial accord- government and conduct the effect of misconceive argue ingly. should have defendants 1201 when Section given list of and a capital a list of the veniremen offense indictment did state produced on the trial allege witnesses be that Sinatra was it did because stating place government, released. at the he was harmed time and witness abode of each venireman words, offense “In when the other They days the trial. three entire before charged justify sufficiently broad twenty per- should also emptory been allowed verdict, capital proceed must the trial challenges and such additional though basis, the evidence on that even might its discretion ones as court in that such verdict later establishes F.R.Cr.P.) (Rule 24(b), allow. because the victim cannot be sustained Smith unharmed.” v. was released failure to al Because States, twenty per low at least the defendants Logan v. also L.Ed.2d See challenges emptory and the failure 12 S.Ct. give and wit them of the veniremen lists 617, 36 L.Ed. 1429. days the trial we nesses three charged capi- Although indictment therefore the defendant must reverse. 3432, supra, ap tal offense question and Section Irwin did not raise charge may applicable. judgment An indictment peal, the of conviction kidnapping non-capital under case of him on the basis that will reversed be alleged only it is Section 1201 him the benefits failure to allow released 24(b), indictment that the victim was and of Rule F.R. Section 3432 Poitras, 4 plain (Rule 52(b), unharmed. United States F.R. Cr.P. was error. Cir., 339 F.2d 428. Cr.P.) apparently under- conceded and assignments of We will discuss other through- stood the court and counsel may present questions in the error which pre-trial proceedings out the entire retrial of this case. For was released unharmed. Sinatra assign as error Both Amsler and Irwin appears this reason it offense into the admission of their confessions non-capital was considered tried as a con- will first consider the evidence. We to find in offense. While we are unable fession of Irwin. On December the record that there was discussion night spending at his after or that for the Section 3432 counsel Imperial Beach, Cali- brother’s home requested specifically defendants ever fornia, brother of Irwin informed his it, under benefits nevertheless kidnap- his connection with the Sinatra applica- defendants entitled participat- ping, and that he was “sick of provisions tion of as a matter of law. its ing” turn himself in. wanted mandatory call that the brother would 3432 is decided Section capital of 8:15 and and defendants for a F.B.I. between indicted Somewhere given morning, must of its 8:30 that the brother tele- fense benefit Logan F.B.I., provisions. phoned while Irwin listened v. United supra; Irwin into the con- 123 an extension. broke McNabb v. United participa- (C.A. 6), his on other versation and announced 848 reversed Jail, Diego County kidnapping, he was unable presence tion in the where the the money in sleep some of the no bed ransom in to because there was his car At 7:30 his desire to room to he was taken. surrender himself. agents him at interviewed F.B.I. a. m. approximately agents At the 9 a. m. twenty-seven- jail. the the Irwin read F.B.I. arrived at the brother’s house and page corrections statement and made identified themselves. Irwin told them read, They retyped, pages. two were money that his share of the ransom was signed approved, m., at a. Irwin gave Agent in his car and he Mitchell the statement. keys the to request his ear. At Mitchell’s Objection to introduction is made Irwin unlocked car and an attache one, grounds: of the on two confession containing case was found United States during period of un- that it was a made currency. inspecting car, Prior to (a) of Rule lawful detention in violation agent advised he Irwin that did F.R.Cr.P., and, two, that it was of the any have to make a statement and that voluntary. coerced and therefore statement he did make could be used following 5(a) that, requires ar- against him in a court of law and that brought rest, person before a United right attorney he had the to consult an “without unneces- States Commissioner he desired. Irwin stated that he wanted McNabb-Mallory rule, delay.” sary to “make clean breast the situation.” 87 L.Ed. S.Ct. agreed agents accompany Irwin to to. rehearing 784, 63 S.Ct. den. 319 U.S. during headquarters, F.B.I. fif- 87 L.Ed. twenty there, teen to minute ride reiter- any 1356,1 1479, holds L.Ed.2d ated his to desire “make a clean breast during when confession obtained a time of this matter.” car While Irwin brought the accused should explained agents to the role his Commissioner, before the violation kidnapping. substantially This was a rule, at sub- and inadmissible complete participation statement of his sequent con- Irwin claims his trial. in the crime from the time at he arrived signed appearing fession, which he after Canoga the house in Park ac- after Commissioner, a result was They tual abduction of Sinatra. arrived detention, such a “fruit an unlawful or headquarters at approximately at 9:30 tree,” poison and hence inadmissible. m., a. permitted at which time Irwin his person agree weap- to be searched for concealed We cannot the confession drugs. during Immediately prior period ons to was taken of unlawful being questioned, relationship approximately at whole detention. Irvin’s m., again a. Irwin was com- advised of his with the this matter was F.B.I. right silent, right voluntary. pletely to remain his to at- His contact with first torney anything by telephone through and the fact that the F.B.I. his he said Throughout could request. be used him. at told brother his himself He period interview, telephone he there the F.B.I. coffee, lunch, kidnapping, numerous breaks connected din- with Sinatra money ner and p. toilet relief. At 10 had m. he some the ransom night, twenty-seven-page typed state- that he wanted surrender wanting completed ment was and handed Irwin F.B.I. His attitude one to be read. Irwin said that he would “make a clean breast of matter” prefer “straighten morning. to read it in the out rela- He and a desire tionship At Sinatra case.” no time then taken to room, another where during questioning period of Irwin’s permitted sleep. At a. 3 m. disaffirm attitude or inten- did he morning, appellant next was taken before tion. for ar- United States Commissioner again voluntarily raignment, “let the eat Irwin of his and was advised bag” rights. out of the in his initial contact Bail the amount was fixed voluntarily virtually made $50,000. F.B.I. He He was then booked the San

47 clarify verify participation the and ad- confession complete of his a confession prior during made to the time he ride to F.B.I. missions Irwin crime the in the custody. incon- Anything taken It of this was into seems headquarters. short voluntarily in- Irwin with his would inconsistent ceivable would have been give up surrendering to the himself and surrender himself tention of giving contemplate making not a full the matter.” F.B.I. and “a of clean breast participation agree crime. Irwin of for account his We with counsel cannot began illegal of this with the Under all circumstances detention case, 5(a) of headquarters. In United conclude that Rule we ride to F.B.I. applicable Mitchell, 65, not 64 S.Ct. F.R.Cr.P. was Irwin. 322 U.S. States v. 1140, rehearing 896, den. 88 L.Ed. Furthermore, confession 1595, 1257, 770, 88 L.Ed. U.S. 64 S.Ct. arraign signed subsequent to was spontaneous admis- court held ment before the United Commis States immediately guilt by Mitchell sions of therefore, and, sioner cannot said after in evidence arrest were admissible during when have made a time though illegally de- even Mitchell was unlawfully Feguer Irwin was detained. days eight tained for thereafter. States, Cir., 214, made which Irwin over admissions 872, 83 cert. den. 371 telephone, dur- house and his brother’s also, United States v. L.Ed.2d 110. See ing headquarters, were ride to F.B.I. Carignan, 72 S.Ct. clearly admissible. 48. is true that the subse L.Ed. prior quent product a confession is the of confession, We come now detention, justice requires that unlawful signed by here, under attack Irwin a few it be for the reasons that excluded same arraignment hours after admitted any prior confession is excluded. Silver facts of into the trial. The evidence at States, 251 thorne Lumber Co. v. vastly this are different from the case 64 L.Ed. supra. Mallory States, facts in v. United States, 308 Nardone v. United Mallory, year boy In of nineteen old 84 L.Ed. intelligence for limited detained signed However, it is obvious subjected test hours and to a lie detector objection confession, here, under extracting purpose confes product voluntary of his statements suspect sion from him as a in order to which we held here to be admissible charge pur him with an offense. the “cat out evidence. Once let underlying McNabb-Mallory pose bag” voluntary statements, he his prevent police rule from em regard- put bag, could not back ploying practices such “third de as the interroga- transpired less what in his gree,” securing prevent them from headquarters. tion at F.B.I. damaging from an accused statements We conclude that the confession pressures. means of The facts coercive of a violation inadmissible because in this case indicate that the basic First, 5(a) the- of the F.R.Cr.P. premise inapplicable to of the rule is applicable rule under the circum- Irwin’s the first confession. Irwin made and, second, case because stances volunteered overtures the F.B.I. and signed arraignment and was it was after seeking. information was There prior product not a dur- confession absolutely pressure, no coercive ing illegal detention. put otherwise, upon petitioner to sur kidnap Cir., render and admit his role in Ginoza v. United ping, except pressure of his con F.2d and Morales own v. United Cir., distinguishable “straighten out science and his desire to 344 F.2d are relationship from the case at bar. case.” their facts Sinatra person is not Both these lack the element uncommon for to make a cases highly spontaneity present publicized false to a and voluntariness confession necessary and in United States It was F.B.I. to the case before us crime. lawyer. objectionable Mitchell, supra. Ginoza was arrested was evidence probable government suspicion by through on with cause vio- obtained lating by trickery. He Federal Narcotics Laws. informer The doctrine interrogation Illinois, until was held for a con- Escobedo v. 378 U.S. State charge upon fession which a could be is not L.Ed.2d predicated retroactively applicable was The court held extracted. to at the case incriminating Jersey, that his confession and bar. Johnson v. State of New during his statements made detention 16 L.Ed.2d Mallory were inadmissible under by Morales state of- rule. was arrested signed Amsler also contends that his ficers violation of narcotics laws and statement should have been admitted custody in held for fourteen hours state into it because was evidence obtained being before to federal nar- turned over prior arraignment to his in violation agents. subjected ques- cotics He to was the McNabb rule and his constitutional tioning by agents federal hours three rights. midnight Several minutes after during damaging admissions time agents ar- December F.B.I. were made. He told that if he was Roger apartment rived in at the Dier “cooperate”, “cooperation” would his Angeles, Los where Amsler identified brought would to the attention of the agent An in- himself. Bureau Attorney’s United States office. A advising rights, formed Amsler of his readily States Commissioner him that state- he did not have to make a building available the same where the ment, did, if he used could be questioning was court conducted. The against him, right to and that he had a Mallory held to be in violation agent counsel. these Another reiterated rule. rights to he Amsler who stated that knowing this, had realized but he merit the con We find no thing, become he a serious involved tention that confession was Irwin’s up. Approximately wanted $168,500 to clear involuntary. coerced and The whole apart- at in cash was found matter of his arrest initiated his ment, which Amsler stated was from give up desire to himself “make a placed kidnapping. Sinatra Amsler was clean breast” of role in the Sinatra his apartment. under During while at arrest kidnapping. just He did that and we apartment to from the drive cannot he conceive how can claim that again headquarters, F.B.I. Amsler was the confession was coerced. There is no rights. reminded of his conversa- evidence that he was threatened in pertained primarily tion in the car way anything or promised that he was how able Amsler his associates were story sign if he would tell his the ulti get through to the the road block and argued mate written confession. is gun fact that had held a Amsler Sina- agents the F.B.I. said that tra, They head- arrived at F.B.I. Jr. testify orally could though what he said even quarters approximately m. at 1:30 a. sign he did not the written con agents, One of the some ten to fifteen fession. This was true but we do not re later, minutes called the United States gard this as a also threat. said that Commissioner his who stated home lawyer he wanted to consult although well, feeling he he was not signing the confession. This is con would hour be in office in about an flict. pre The trial conducted a being finger-printed and a half. Prior hearing suppress on the motion to photographed, requested Amsler evidence. He found that the confession ciga- voluntary provided package then submitted the is jury. to the sue He inter- Massiah v. United rettes and a Coca-Cola. agents, 2:22 12 viewed F.B.I. from two m., who, point. prior L.Ed.2d is not a. m. until a. There 3:27 questioning, defendant had actual advised Amsler been indicted and he had a agents charged Bureau Investi- he with violation of the Federal had been gation telephones Statute, Kidnapping extension that he was listened on Federal required say anything, any- tape of the conver- not thing recorded several say appellant Irwin and did could be used sations between anything him, Sinatra, that the must be volun- Sr. Irwin claims he said per- right error in tary, to consult reversible and that he had the committed recordings play- During attorney. period, mitting tape to be one of these jury. agents which ed to the wrote out statement read aloud Amsler read and which was of Federal Section 605 wrote, to him. Amsler “I have Then (Section 605, Title Act Communications consisting two read of this statement U.S.C.) 47, provides: signed true,” pages it. is being by “(N)o person not authorized office of Amsler then taken to the intercept any com- the sender shall where Commissioner States divulge publish the or munication and arraigned approximately 4 he was at substance, contents, purport, existence, a. trial that m. Amsler testified at the meaning intercepted effect, or such of own he the statement of his free made any person.” communication to will, rights, he was advised of subjected any and that Appellant admis- Irwin claims pressures, promises. threats or recordings tape into sion of evi- these of this dence constituted violation suggest, On without decid- retrial we not consent section Irwin did because ing, possible application of Miranda interception publication of the to the or 436, Arizona, 86 of 384 State In Rathbun v. conversation. 1602, 694, the admis- S.Ct. 16 L.Ed.2d 107, 161, 2 355 78 S.Ct. sibility of the statements and confessions rehearing 134, L.Ed.2d den. appellants. of In Johnson v. State 363, L.Ed.2d Jersey, of New leading the court case section ap- Miranda the Court “that held held that no unauthorized there was plies only to trial be- cases which the interception party, with a third where gan one date our decision after only parties the consent of one of the ago (June 1966).” (Emphasis week conversation, to the listened on an ex- added.) telephone later as tension testified circumstances, in as Under the to the substance of the conversation. by evidence, state dicated Amsler’s 605] “The clear inference Section [of vio ment was not received in evidence in is that entitled to receive the com- one any rights lation under either of his may it for his own munication use the McNabb rule Federal Consti or the or it for him. benefit * * * have another use arraigned promptly tution. He as by conceded those has been could the United Commissioner States who conduct believe the here violates repeatedly arrive his office. He was at may party re- Section 605 that either rights, and advised of his constitutional publish it.” cord the conversation and was not manner. There coerced p. 110, S.Ct., p. U.S., at at 163. fore, appellant Amsler the statement properly received evidence. Although tape Rathbun did not involve Irwin and Keenan were in confessions of recording conversation, its ra- into under instructions troduced evidence ruling support the tionale would only jury con to the were no trial court There can be in this case. Keenan, against re Irwin and sidered meaning “interception” within They spectively. con to be “(e) party to a ach section 605 because and we find sidered as Amsler telephone the risk that takes conversation respect. no error in this may party other have an extension obtaining telephone may of Frank allow another to over- the consent After Nancy Sinatra, U.S., p. at hear conversation.” 355 and Mrs. Sr. p. party explained money, If S.Ct. It was also that once conversation, party numbers, or a third with his which is identified serial permitted consent, testify case, as to has been used in it is the a criminal conversation, practice substance money a record- to have such removed ing similarly having treated, through Treasury should be from circulation advantage accuracy Department the additional destroyed. un- passage blemished emotions Although Irwin, at counsel for Cir., time'. Carnes v. United hearing suppress on the motion to 295 F.2d cert. den. 369 U.S. evidence, said, require that “We would 8 L.Ed.2d 19. produced,” it be find motion under we no recognizing court, tape This re- 16(b) in of the F.R.Cr.P. for an cordings principle do not differ in from spection money. money of the had testimony as to the contents of conver- by been turned over to the F.B.I. the de sations, upheld has their admission into ample fendants and there identifying it, evidence was parties evidence where one of the has preparation for both in its recording. consented to the Carbo v. delivery kidnappers to re and in its cert, States, Cir., 718, United 9 314 F.2d prejudice turn. We find no to de 953, den. 1626, 84 S.Ct. 12 L.Ed. assignment fendants under this of error 498, rehearing 2d 1010, den. 377 84 and conclude that is merit. it without 1902, 1058; Lindsey S.Ct. 12 L.Ed.2d v. The facts involved demonstrate Cir., 688; States, 9 332 F.2d Bat- that no taglia there is merit to Amsler’s con States, Cir., v. United 9 349 F.2d illegal tention that there search cert. den. 382 U.S. 86 S.Ct. moneys and seizure of Irwin’s car when 360, rehearing 15 L.Ed.2d den. 382 U.S. was searched in the of Amsler absence 15 L.Ed.2d 537. or counsel and without an arrest or Therefore, the court did not err in admit- ting search warrant. Irwin told the F.B.I. tape recordings telephone telephone on the that he had some question. conversations in money parked ransom in an automobile assignment In another of error is it Thirty in front of his brother’s house. claimed on behalf of Amsler that agents arrived, minutes lated and F.B.I. denying court sup- erred in a motion to Agent keys Irwin handed Mitchell to press relating evidence to the United money the car told him and that the currency States which was recovered freely in it. Because Irwin and volun defendants, alleged from the as the ran- tarily directed the F.B.I.’s attention to money som delivered to them the re- money, it cannot be said that there Sinatra, lease of Specifically, Jr. it is was an unreasonable and search seizure. claimed that the defendants Cir., Saka, United States v. 339 permitted to “cross-examine” and “con- freely Irwin consented to the money. front” the thereby search and waived constitu being illegal There no search and sei- rights might tional he Gilbert had. money, zure of erly judge prop- the trial States, Cir., v. United 307 F.2d suppress denied the motion to den. cert. concerning evidence it. The basis of this L.Ed.2d 132. assignment of error seems to that the be permitted defense counsel was not to It is claimed on behalf of Ams see, inspect, and count examine the actual ler that the federal court was without currency jurisdiction try was recovered from the de- to him for the reason fendants. suppress On the motion to that there was no evidence of interstate currency actual transportation involved was not Sinatra, prior Jr. to his government the court. Counsel for transportation consent to the explained it implied had been to returned the evidence showed both except specimen express bank for a part Sinatra, few bills consent on the recovery. retained from each source Jr. to transaction. no There is merit States, F.R.Cr.P.; Goldsby v. United con- inwas to claim. The evidence L.Ed. coop- consent and matter of flict on the supra. Feguer ample Sinatra, There was eration of Jr. his he restrained evidence of Ams It is on behalf claimed liberty force threat of under force limiting cross- ler that the court erred to in- question of consent submit government’s wit examination jury. transportation This terstate represented Each defendant nesses. sup- sufficient evidence was likewise During pretrial, his own counsel. acquittal. port a denial of the motions stated: assignment error Another course, be “Of each defendant will quashing sub the court erred all honored with cross-examination poena re Frank Sr. government’s own witnesses fusing further exami recall him for attorney wishes, only re- claimed that nation. The defense striction will there be no shall to examine him with reference wished repetition subjects.” of the same money question determine This was reasonable restriction actually paid as a ransom whether was a matter the sound discretion within publicity paid it was whether of the court. v. United Glasser the wit shows that scheme. record 680; L.Ed. by prosecution the ness had been called States, Cir., Kohatsu v. United by had cross-examined and that he cert. den. 384 U.S. the in the areas in defense L.Ed.2d Beck v. hear to him. After wished re-examine States, Cir., 298 F.2d den. 370 cert. ing Sinatra, and for counsel Frank Sr. 8 L.Ed.2d 499. case, in the court determined counsel the judge The record the shows that trial subpoena would be an that to issue the allowing was liberal in cross-examination oppressive and unreasonable use by all no defense There was counsel. process that the conclude of court. We respect. error in this the no discretion on there was abuse of objects part judge quashing Amsler to the Counsel for of the trial in ruling judge ques the subpoena requiring of trial on two Frank the in not Sinatra, on appear tions asked cross-examination of wit to for further exami Sr. (Rule Bray. 17(b), (c), F.R.Cr.P.) Ronald ness court sustained nation. The objection you question, to the “Are part of It is also claimed the by you hoping testimony that this that refusing that the in Amsler court erred giving prosecution, are favorable to the request subpoena a one John Hanson. to you is, prosecuted if it that not be will of A the motion was made for issuance co-conspirator?” question a The as was George A. subpoena of and an affidavit answered, reframed and the “I witness Amsler, attorneys Forde, one of the for hope I am not The linked with this.” support of ma filed in of the claim was pursued matter was not The further. teriality. judge mo The held the trial question, other he “Isn’t it fact that abeyance the tion in with observation (Keenan) you you told not be would calling purpose the witness the of prosecuted Sinatra, Mr. Frank because extra-judicial merely fortify to was co-operating?” pre Jr. was had been self-serving statements declarations viously substantially asked the same in by to testified to Amsler. Subse be by form and answered the witness quently, sustained when the negative. no error the rul There was government’s objection Amsler’s the ings questions. on these subject involved, testimony on the During the direct-examination request denied the for issuance Special Agent Murphy, Emmet F.B.I. J. subpoena. This was a matter within government for counsel asked no court and find the discretion we anything if further said witness was (c), 17(b), respect. error in this prejudicial with The witness ler claims this was error. interview Keenan. this then related the substance of a conversa- We find no merit to claim. think-, tion in which Keenan said that completely fully The court might ing enough money of who put theory defendants’ case Tony Hope be victim, the name of jury, properly instructed objection crossed his mind. No was jury important on this The issue. testimony made to this at time it was jury Sinatra, was Jr. instructed given. following day The counsel for voluntarily accompanied the defendants Amsler, on all behalf of of the defend- kidnapped, or that if consented to be ants, for moved a mistrial two prearranged kidnapping was grounds: testimony one, that Sinatra, person, the Jr. or other de prejudicial, two, and, the news- jury acquitted. fendants must be papers story Hope’s carried that Bob may expressly was told that consent be son was a near victim and that this would may impliedly given, or be evidenced prejudicial jurors. in the minds of the judge pointed action or inaction. appeal On this for counsel jury out testified Jr. Ams-. prosecutor ler contends that cooperated that he consented to and guilty presenting misconduct requests during the kid defendants’ foreign evidence because to the jury napping, but that case bar. was made clear that this expressions determine whether these only evidence was admitted the de given consent or if will free fendant Keenan. The court instructed subject any physical he was mental jury that this was admissible restraint. These instructions were showing purpose of The evidence intent. only correct, but reflected the sum and part story awas Keenan’s F.B.I. proposed substance of the defendants’ in agent concerning the whole case. structions on the issue of consent. and, particular, admissible such as in it jurors judge the The told was admissible to show intent. was they that if find that the defendants not admitted and Amsler no Sinatra, pistol, threatened with a Jr. timely objection was made to it. There “may, (they) wish, if infer” that was part was no on error the of court in the capable of loaded with caus bullets and denying the motion for a mistrial. ing correctly bodily judge harm. The There is no merit of to the claim coun- stated that no that there was evidence judge sel for Amsler that the trial in- any arrangement person ever made province jury vaded the in defin- Sinatra, Jr. for his abduction. ing kidnapping the crime of under count jury was also to the that Ams correct tell two indictment. We will discuss testimony ler’s and Keenan Irwin’s that fully this more in connection with the re- Sinatra, told them of knew the Jr. quested instructions. kidnapping beforehand, not to be considered to truth of the state as the accept A court to is not bound ment, only but on it reflected their language requested the of a instruction intentions and Such statements beliefs. proffered by give pro counsel nor to clearly hearsay judge prop were the and posed requested instruction the court if erly import. limited their gives Agnew it in substance. v. United requested 17 S.Ct. L.Ed Amster instruc 3) (No, for tion if Frank Counsel the defendants re to the effect that quested writing Sinatra, put up $240,000 pub instructions Nos. 1 Sr. the for through given licity jury, son, ransom, 12, to be for for the on acquitted. the issue of Sinatra, the consent of defendants must The Frank be judge denying kidnapped publicity pur Jr. did for not commit error in poses. requested These this the first instructions were denied instruction. In by judge place, purport the trial Ams- of the instruction counsel ing any proposed Sinatra, in- ar- of the defendants’ Sr. the effect was to request kidnapping, structions. ranged such jury given judge instructed when assignments of error The arranged by kidnapping was if the public Amsler trial and was denied a behalf, de- Sinatra, Jr.’s someone right tape re denied the acquitted. Further- must be fendants wholly proceedings are cord the trial more, of defendants motives of dis merit. The order7 without father, Jr., were not his Frank judges of trict District of the Southern ease. in issue this California, judge, enforced the trial broadcasting correctly restricting photography, judge refused The 7) precaution (No. television, proper proposed Amsler’s instruction ary prevent of case, the measure to a recurrence stated, element “In (Estes Tex., specific Estes v. State of to commit crime intent 543) you you If 14 L.Ed.2d convict. can essential Sheppard Maxwell, youthful (Sheppard transactions were find 600) acquit crime, you must 16 L.Ed.2d pranks and not a proceedings im the trial cases. The The instruction is the accused.” reported reporter and precisely an accurate an official court and is not drawn apparently cor furnished with counsel were statement of the law. daily rectly charged jury transcript. no the issue There was occasion recording. tape for an unofficial intent. Inasmuch on the as we must reverse proposed instruc Defendant’s supra, basis of Smith v. United illegality relating tion No. unnecessary we find to discuss other given by defendants the statement assignments questions error since introduced, properly in evidence likely thereby raised are occur such refused. The issue of whether a second the case. in violation were obtained statements judgments of conviction Amsler McNabb-Mallory presents rule re- and Irwin are reversed and case question deter of law for the court manded to the District Court retrial. judge properly instructed mine. The jury and the vol on the of coercion issue Judge ELY, (dissenting Circuit of the statements. untariness part): Requested ef- No. instruction judgment re- I concur in the money up pub- While put that for fect agree majority versal, I Jr., cannot with licity purposes not for Rule there here no violation jury acquit was for his release the must 5(a), Proce- Federal Rules of -Criminal properly A instruction denied. similar given by dure. the court. The motives money up put those the ransom who custody by fed- taken Irwin was into determinative, mo- it was the rather morning agents 9 o’clock in the eral at Sinatra, Jr. tives of defendants and Beginning hour 13, 1963. one December interrogation Therefore, properly later, unin- instruct- continued jury terrupted, except in this breaks ed the on the issues involved “numerous deny- coffee, dinner, re- case, lunch, error in and toilet did not commit “NOW, THEREFORE, HEREBY 7. IT IS Post Floor of the States Street United Building, forms, all means and located ORDERED that Office and Court House taking photographs, Spring Street, Angeles, or Los manner of broad- North at 312 during casting televising hereby prohibited California, or from the entire or are any part thereof, of, with, or or in second floor Hearing the course connection judicial proceedings, No. court ac- No. 1 and whether Rooms leading tually the Main thereto session not.” corridors More lief,” for more than twelve hours. Irving BASS, Trustee, Appellant, I. day- period than seven hours.of when, v.

light weekday, a time hours of assume, QUITTNER, Commissioner TREISTER, I a United States STUTMAN & Appellee. readily metro- would accessible Diego. city politan But it was of San Irving BASS, Trustee, Appellant, I. morning, until 3 the next after o’clock v. completed interrogation had been GENDEL, RASKOFF, & had reduced Irwin’s statements SHAPIRO QUITTNER, Appellee. finally writing, the federal officers arranged arraignment required for the Nos. 20601. 5(a). Rule Appeals United States Court of majority opinion our states that Ninth Circuit. decisions in Ginoza v. June (9th 1960), v. F.2d 616 and Morales Cir. (9th 344 F.2d Cir. 1965), distinguishable “are on their facts disagree.

from the In case bar.” I eases,

those of- which held that federal permitted ficers would to avoid not be obligation upon imposed them 5(a), re- we undertook to establish being

quirements capable which were easily And, applied. understood and great bulk of cases which arisen

since Ginoza and Morales were handed

down, discharged federal officers have obligation in accordance their

requirements. The instant case involved alleged abduction of the son one entertainers, of the world’s known best perhaps it was of the un- because public

usual attention which focused on agents particular

the matter performing obliga-

were remiss in

tion here. majority characterizes Irwin’s “spontaneous” declarations as so

apply rule of United States Mitch- description connotes,

ell. Such my mind, those declarations were impulsively,

made without deliberation

and without external constraint stim- accept application I

ulus. cannot label statements which were ob- interroga- in an

tained environment period

tion which extended over a

twelve hours. regret my I have chosen brothers view, step which, my

to take a must controversy

lead to new areas of Courts,

District as well as in our own.

Case Details

Case Name: Joseph C. Amsler and John W. Irwin v. United States

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 3, 1967

Citation: 381 F.2d 37

Docket Number: 19509

Court Abbreviation: 9th Cir.