*1 America, UNITED STATES Plaintiff-Appellee, BAILEY,
Darwin Clark Defendant- Appellant. No. 72-1799
Summary Calendar.* Appeals,
United States Court of
Fifth Circuit.
Sept. 1972.
Rehearing
Granted Nov.
*
Cir.;
Enterprises,
Casualty
York,
Rule
see
Isbell
Inc.
Citizens
5 Cir.
Co.
New
1970,
John defendant-appellant. Ray, Atty., E. Alfred U. H. M. S. Oxford,
Moretón, III, Atty., Asst. U. S. Miss., plaintiff-appellee. for Chief Before R. .BROWN, JOHN MORGAN, Judge, and GOLDBERG Judges. Circuit Judge: GOLDBERG, Circuit complex a consist case drama This is ing many scenes and involv acts and many players. It reaches cast a appeal Mis from a us in form anof Highway sissippi conviction Patrolman’s robbery federally a insured bank 2113(a) and violation of U.S.C. § limited, (d). how is Our role as critics reviewing although ever, this criticize, com we are much to we find by precedent con pelled affirm shortly stated, For reasons be viction. regret power in our is do otherwise. FACTUAL
I. THE SETTING setting from which this The factual extremely complicated. Be- case arises is pre- applied turns cause the law be distinctions, it is factual cise and narrow necessary in un- out facts that we set great usually detail. opened approximately This drama 8, 1971, morning of March 10:45 robbery the Citizens armed gun- Byhalia, Mississippi, a Bank of clothing appearance man whose cashier, officer, bank assistant other witnesses were able describe. cashier from who the rob- The assistant presence money had ber took over mind include in the cash handed money.” As the bank bundle “bait viously money” currency aof is the denominations “Bait bank' recorded along kept with the identification in a stack of bills identified teller’s printing, numbers, places might cash drawer in dates order ' Treasury Secretary money given name of eluded In robber. case, pre- appearing on each bill. . the assistant cashier had sounded, passing saw alarms witness position that his understood driving behind the a car from street being gambling investi- activities were government’s bank. gated. wit- Some contend, however, nesses police alerted and roadblocks thought along under- all assigned One of those were established. robbery actually ob- stood the appellant, man a Dar- roadblock was *3 investigation. any event, ject of In Bailey, who his win Clark post remained at appellant signed warning a Miranda police with until officer John Shaw Warning I], see Miranda form [Miranda that that time 2:30 afternoon. At Shaw Arizona, 86 S.Ct. U.S. appellant there, his drove to home. From 694, although 16 L.Ed.2d testi- appellant police he drove car and Shaw signed fied at his trial that he it with- spot appellant’s drove car to a where reading out it. appellant’s left car for his wife have after she left work. The car was appellant testified Rabideau that after later described as similar seen warning one had received Miranda morning. at the bank that Later that High- Stringer appellant advised that the night appellant went to American way op- Patrol desired to afford him an Legion Holly Springs, Mississippi. Hut portunity to account for his activities Although Highway it violated Patrol past week, appellant that indicated the willingness regulations, gambled rules and he often matter, to discuss the and gambled at the Hut and he there that appellant spontaneously requested that night. placed that his a letter be file Highway exonerating Following the any Patrol him of an week, intermission one robbery. Inspector in the involvement bank Wayeaster, appellant’s H. H. superior ap- During meeting, officer, the course appellant ap- ordered pear pellant described actions from Holly sheriff’s office in Springs. robbery, Appellant date of the but did not dis- he later testified that Wayeaster robbery cuss further itself. The meeting told him the towas topic principal appellant’s appellant’s gambling discuss Appellant discussed was activities. gambling. At conclusion of meet- testified, also however, that ing, signed permit appellant he had waiver been told Patrolman Charles C. police Hinds a search to be made of his house and was suspected that the that Jackson, Mississip- appellant appear in spent had ordered to some the bait money pi, next before Commissioner Crisler the robbery. taken in the Further- morning. more, subsequently A Crisler, search was Giles Mississippi W. Com- Rabideau, another FBI Safety, missioner of conducted Public testified that Sheriff, Agent, Deputy he had but no evi- day been informed As- I], dence sistant was seized [Search Commissioner J. D. Gardner that money bait had been appel- traced to Appellant day testified later that lant, whereupon Crisler had ordered Hinds him told three the baited Inspectors Gardner to Wayeaster send appellant. bills had been traced to He Stringer Holly Wood Springs testified further that first this was the investigate the Additionally, matter. indication he that he was definite implicated Stringer testified that he had advised robbery. in the Crisler of robbery suspicions. bank night 15, appellant On the March Appellant went to the apparently despondent courthouse on became and be- (cid:127) 15, 1971, March and was gan drinking. taken to the He went back to private Sheriff’s [Interrogation Legion office gambled American for Hut and appellant, I]. Present Sheriff, short while. He then went Agent FBI String- Richard T. Rabideau, Springs Holly Colonial Restaurant er, perhaps patrolmen. two other approximately drank for black coffee two purpose meeting which Highway hours. About 1:00 a. Pa- m. disputed. ordered is now Appellant’s Bryant trolmen Billie Hastie House police Appellant he appellant return- testified when and took arrived Snodgrass Snodgrass’s lounge. officers, office, ed to The other two station terrogated appoint- knowing pending rob- appellant’s him bank bery. stayed morning, Appellant further testified that ment Jackson robbery police he denied involvement for several him station at the Snodgrass recommended Appellant contends he hours. guilty drinking coffee, be better kept up there was again guilt. sleep part Appellant testimony managed confess. denied that he Snodgrass, however, 4:00 m. recalls that con- after a. Sometime time. gambling appellant to his versation concerned and that the two officers took brought changed appellant up house, matter of the where showered robbery. testified further He clothes. purely actually advised house, appellant From was taken manner that it would be better off-hand Pontotoc, House to Mis- Patrolman *4 to had commit- to crimes he confess Stringer. String- sissippi, met where he ted. picked up Waycaster appellant er and arriving Jackson, all drove to and three Waycaster, Stringer, and an Assistant morning. they around in 8:30 the While Inspector Holly appellant drove back to Agent route, en another FBI were search- Springs. They picked up Patrolman appellant’s permission ed house with the proceeded House at the courthouse then appellant’s Again, of wife [Search II]. appellant’s appellant There house. however, no was seized. evidence Highway Patrol uniform turned his equipment, pursuant suspen- the and Jackson, reported appellant In to the requested per- sion. House and received of office Personnel Charles E. Assistant appellant to the mission to drive back Snodgrass. Appellant until waited 11:00 way, office alone. On Sheriff’s a. m. he into was called before Snod- “riding House, appellant’s had who been grass’s [Interrogation II]. office Snod- engaged appellant partner,” emo- an grass appellant testified he warned relating tional the rob- conversation rights precautionary of his as a matter give bery. pled appellant House Warning II], although [Miranda saying up guilty, he was himself if warning affirmatively appears typed in a if for all concerned it would better be transcript Appel- of the conversation. began crying do so. Both men he would signed statement, lant the transcribed appellant that he told wanted and House entirely gambling which related to his to confess. except following remark made by appellant: courthouse, they When arrived at night volunteered that “On the of March I15 was off looking for. man the authorities were out uniform. I was and con- warning signed Miranda form He [Mi- cerned those officers because investi- Warning III], gating questioned randa robbery Byhalia [In- the bank terrogation signed III], and a handwrit- something seemed to think I had to do admitting bank rob- robbery they ten confession
with the and indicated bery giving fully account twenty-dollar and detailed three of the bills He admitted own- robbery taken in his involvement. had been traced tome. using apparel . . .” and the car Ap- had described. the witnesses signed appel- After he the statement pellant thereupon then arrested. He lant was directed to the office of Com- allowing signed search another waiver Crisler, missioner where he was told III], en- home [Search temporarily suspended that he was to be incriminating suing up search turned pending hearing from the Patrol due gambling drinking clothing. habits. jected charge use of the Allen THE TRIAL II. BELOW argued alternatively brought Appellant trial was first given ad- to be that an were additional jury Dis- United States before monitory should instruction also Northern trict for the District Court duty to to remind the of their very Mississippi October, 1971. The by their case. abide own views judge lengthy conducted able district gave jury judge The then an Allen hearing evidentiary appel- pre-trial charge, below,3 set out included suppress lant’s motion to evidence requested jury admonition. grounds confession on of involuntariness. deadlocked, however, hopelessly mained taking days testimony, After two and a mistrial was declared. findings judge made detailed district fact and conclusions law in which he March, appellant’s At second trial held that the confession constitution- met judge again found that district al standards voluntariness.2 applicable confession met all stand- presented ards of voluntariness allowed After the jury be introduced into evidence. Further- had retired to consider more, jury verdict, ques- judge submitted advised the agree tion of the voluntariness confes- unable ato verdict. Exercising judge sion. an abundance advised of cau- counsel in cham- tion, give bers instructed that he intended to charge. unless found the confession See Allen to be v. United *5 voluntary beyond a reasonable doubt U.S. 17 S.Ct. 41 L.Ed. Appellant’s attorney they disregard vigorously altogether.4 528. were to it ob- findings dissenting juror 2. conviction, of fact and conclusions of a should con- by judge appear law made the district as sider whether his doubt a reasonable appendix opinion. one, upon an impression to this which made no the many equal- minds of so and men women right. give you 3. “All I desire to some ly intelligent equally honest and as him- additional considering instructions. You have If, majority hand, self. on the a other jury in the case the room for you minority acquittal, are for the approximately five hours when de- they ought to ask themselves whether duct the time out for lunch. might reasonably not doubt the correct- charged you morning, “As I in this or- judgment a ness of which was not con- case, der to reach in a verdict it must by majority. Now, curred in the bear in unanimous, you each must you mind as deliberate this case further agree analy- the verdict and the final you your not are to surrender honest you your go by sis each of must individual you convictions, but are to endeavor to judgments you have about the case. That you agreement reach an if do so with- can say, you is each one of must de- your judgment. out violence to your cide the case in own mind. Your going you go am“I now to ask that agree. twelve minds must And under no your jury back to room and consider you circumstances are honest, to sun-ender an your further verdict in this case.” you conscientious conviction that hold “Now, about this evidence. IBut evidence has been introduced that you large percentage a of cases the defendant made an admission or con- certainty expected. fession, absolute allegedly, relating cannot be to the crime Although charged you, the verdict Now, must be verdict the in the indictment. juror each jury, weigh individual and not mere the must confession acquiescence in the conclusion of his fel- with caution and scrutinize the circum- jurors, yet you low surrounding should examine the stances it to determine wheth- questions freely voluntarily submitted with candor and with er it was and made. regard proper Now, the jury and deference if the finds that such confes- opinions freely voluntarily of each other. sion was made by and your duty it is knowledge “Now defendant, to decide this case with you conscientiously ju- if can do so. No nature of the and confession without fear expected judg- ror coercion, physical psychologi- do violence to his or either or yet you ment, disposi- cal, promise jury should reward, listen with' a or then the argu- tion to be may together convinced of each other’s consider it—the confession— larger If ments. determining much number all the other evidence language used somewhat jury differed to consider the case retired Following Al- trial. from used first a noon-hour 11:30 a. m. attorneys judge though notified the lunch, he had sent recess for ju- a note from the p. saying he had received note 3:00 m. ry agree to instruct intended 4:00 or that to a verdict. At unable judge further, jury jury p. afforded in for m. the called the object again opportunity gave after an counsel additional instructions. He below,5 reproduced jury charge, had returned to delibera- you pay guilt heed to it. I wish or innocence of the defendant. “Now, undoubtedly, However, you, jury, members of from the while if find jury rep- jury, the should verdict of a that the confession was made evidence juror, opinion freely by defendant, voluntarily each individual resent the and opinions may disregard you, jury, means follows should entire- changed ly. conference in the not be jury sys- very object of the room. The unanimity by comparison determining “Now, tem is whether to secure among by arguments or act or omission claimed to of views and statement Every juror should lis- have outside of themselves. been made defendant arguments to the the Court after a crime had been ten with deference done, jurors, knowingly a distrust of committed you, made or the other larger jury, judgment age, the finds the consider the his own majority should training, education, sex, a different the oc- of the takes cupation, physical than that mental condi- view juror go to tion of the defendant and his treatment himself takes. No should custody interrogation as blind while in or under room with determina- represent should shown the evidence this ease tion that verdict opinion moment of the case at also all other circumstances in evidence surrounding eyes making close his the statement he should omission, including arguments jurors, who are or act or be- of the other whether intelligent equally fore act or himself. the statement or omission honest although done, charge you made or the defendant knew or had I “So been obligated told understood that he was of each verdict must be verdict *6 required juror or to make or mere ac- do and not a dividual fellows, quiescence or statement or act omission claimed in the conclusion of his by him, questions yet you .that have been done or omitted sub- should examine any proper or act or re- statement omission which and a mitted wih candor with might against opinions gard or do could be used of each make deference to the and court, him in that he was entitled to the other. making duty “Now, your assistance of counsel before this is decide statement, conscientiously writing, case, you either or or so. No oral can do doing any omission, juror expected before or and to his own act to do violence money a that if he or means dis- was You should listen conscience. choice, position at- other’s to retain counsel of his own be of each convinced torney appointed larger arguments. and are to advise If number much a obliga- juror represent conviction, dissenting him free of cost or should for a is a reasonable tion. whether his doubt consider upon doubt, impression which made equally many you men honest of so minds “I in the further that event intelligent you himself. any alleged and as find that or confession majority hand, “Now, if, a on the other omission the evidence not here was minority acquittal, you freely voluntarily of made de- and ought disregard whether ask themselves fendant, you only not should reasonably might correct- doubt entirety, you not in its fur- should also judgment not con- disregard any of ness a ther all other evidence and majority. during curred presented trial which has been this you directly “Now, having given these addi- or which was obtained either you my instructions, hope directly that it is on of or as a result of tional account jury you en- room and to the that not to have return confession find will freely voluntarily.” these And with a verdict. been made to reach deavor going mind, now I am instructions you give room and 5. “The to return Court desires to this additional ask your jury. verdict.” the members of the further instruction to consider strong Appellant again challenges admissibility entered a tions. of the writ- charge. objection Interroga- use of ten confession obtained from III, suggests totality tion that of p. m. moved for At 5:30 circumstances must be studied and that grounds verdict mistrial on as a reveal matter of law that judicial the result reached would be involuntary. Appellant’s confession was by appellant Factors coercion. cited argument basic is that the cumulative giving support included the his motion appellant’s effect of all contacts and charge, the lateness of the of the Allen per- transactions with law enforcement weather, inclemency hour, sonnel renders his confession involun- roads, danger on the of travel tary as a matter of law. That conclu- Friday evening it was fact sion on rests a series of assumed fac- many jurors mo- women. The premises tual trial court found p. denied and at 5:50 m. tion laboriously Rather to exist. than guilty. Appel- returned verdict chronology step-by- trace the relevant subsequent entry appeals from lant step to show that the district court’s assigns judgment of conviction findings voluntariness were grounds of error. We discuss those three justified proper, we deem it suffi- ascending legal order of contentions reproduce findings cient that court’s difficulty. appendix opinion. fact in an to this III. JURORS EXCUSAL OF We have studied the record our complains Appellant selves, ample and we find evidence to prejudicial trial error committed support findings. the trial court’s We when he excused for cause two find further on based find those merely acknowledged acquaint who ings proper trial fact court made appellant. argument ance This law, repro conclusions which we also impaneling without merit. “[W]hile appendix. dispositive duce in the trial a serious court has conclusion is follows: bias, question determine the actual court can “The conclude from these rulings and a broad discretion in its facts, beyond indeed it conclude must challenges therefor.” Dennis a reasonable doubt confes- States, 1950, 339 U.S. 70 S.Ct. voluntary. sion free And its 519, 521, 94 L.Ed. Absent proved beyond voluntariness has been discretion, clear abuse a reasonable doubt.” judge’s action will be disturbed on appeal. nothing opposing do read We canWe find briefs abusive *7 appeal disputing prejudicial as in the the basic excusal of ad con- law; trolling rather, appellant mittedly regardless acquainted, how seems to re motely, ask parties that be facts determined with one of the anew. Finding error, proceedings. trial court we cannot facts redetermine on our own. by any appellate
IV. OF Measured ADMISSION standard review, findings THE trial CONFESSION court’s of vol- fully justified, proper, untariness were Appellant’s assignment second of trial supported the record. court error is assertion “under that totality circumstances, including Within his basic claim of involuntari warnings ness, inadequate appellant Miranda specific» advances three [the] arguments atmosphere process coercive of in- deserve our attention. of a suggests terrogation First, which resulted in [the mak- constitutional governing custody” repeated confession standards “in after inter a] de- rogations by defendant, nials not defendant’s here. confes- followed That precise point length sion should have been discussed at in Mi excluded from Although supra, appellant directly Arizona, evidence.” randa v. was considered
659
1630,
rejected.
478,
16 L.Ed.
think that
the decision of
court
totality
the trial
a
to consider the
of the cir-
rested on such an erroneous view of the
under
cumstances
which the statements
merely unwilling
law.8 We are
to hold were made and
ascertain whether
card,
printed
as a matter
that
product
of law
confession
of the defend-
person
read
g.
shown to have under-
ant’s free and rational
choice. E.
warnings,
satisfy
stood the
1968,
cannot
Mi-
Wisconsin,
Greenwald v.
390 U.S.
randa.
519,
1152,
88
20
S.Ct.
But
L.Ed.2d 77.
totality
from the
circumstances
argument
Appellant’s
specific
third
found
have occurred in the instant
garding the voluntariness of his confes-
say
appel-
case,
we
unable to
sion is that
this
a case
involun-
involuntary
lant’s confession was
psy-
tariness due to an accumulation of
psychological
matter of law due to
coer-
chological pressures
constituting
imper-
cion.
argument,
missible
much
coercion. That
may
like
claims,
the other voluntariness
Finally, we note
logical,
be
ap-
not
test is
whether
actually
greater protection
afforded
than
pellant’s
view
case is believable.
he could have demanded in the determi-
Rather,
entrust
to a fact-
courts
process regarding
nation
voluntari-
finder,
judge,
here the district
the seri-
Only
year
ness
Supreme
claim.
determining
exactly
ous
what
Court held that
the Constitution does not
factual events occurred. His declaration
require
precondition
as a
to the admis-
ap-
will
facts
not be disturbed on
proof by
sion of a confession more than
peal
plain
absent serious or
error.
preponderance
of the evidence that
Lego
voluntary.
confession was
v. Two-
Admittedly,
government
it is the
1972,
mey,
477,
619,
404 U.S.
92 S.Ct.
“heavy
bears
burden” of demon
667 let a verdict stand recommends it Association now this court will many may replaced.20 influenced in other Circuits and have been The cling Charge.” way by refused to to Allen an Allen States of the states have United steadfastly 407, Fioravanti, 1969, the Fifth Circuit. Cir. F.2d as has v. 412 420. (1) Circuit The District of Columbia supervisory jurisdiction (5) Fourth has for a dec-
has exercised its
The
Circuit
replaced
judges
it
has
ade
de-
to abolish Allen and
refused
allow trial
language
v.
part
See United States
from the
the ABA standard.
in the least
1971,
U.S.App.D.C. 101, 449
Allen case itself. See United States
Thomas,
banc).
(en
1961,
Rogers,
v.
ished the “Hereafter instruction that does mental solely Association, Bar because of American Standards the evidence effect of by Jury Relating (1968) jurors, opinion for to Trial : his fellow or 145-46 of returning Length Deliberations; purpose a verdict. 5.4 dead- of “§ the mere jury. “(b) appears the court locked If it “ jury agree, (a) jury the court retires for delibera- been unable to Before has may give may jury tion, require their an continue the court instruc- . jury: may repeat give or tion informs deliberations verdict, provided (i) to return a in subsection order an instruction agree thereto; juror require (a). must or each The shall (ii) jury require have a to consult to delib- threaten length and to deliberate with time with one another erate for an unreasonable reaching agreement, an if it a view to intervals. or for unreasonable may discharged “(c) can be done without violence to indi- with- The be judgment; having agreed upon it vidual if verdict out (iii) juror appears that each must is no reasonable decide himself, only agreement.” probability after im- an partial pro- principal ABA consideration the evidence virtue supplemental jurors ; posal discourages with his fellow is that dangerous (iv) eliminates the course of delibera- instructions tions, juror minority’s owing deference should not to re- hestitate reference to change majority. examine his own views opinion to the erroneous; if convinced supra. 21. See note 10 (v) juror that no should surrender his weight honest conviction as
668
explodes
minority
position,
free to detonate the
to rethink
juries.
must reach
verdict from deadlocked
not tell the
does
simply
tells the
verdict,
We entertain
tak
doubts that
trying.
keep
See Walsh v. United
ing any
steps
of reform would
these
1967,
States,
F.2d 135.
371
9 Cir.
largely
possibility
preju
remove
“cautiously”
(10)
Tenth Circuit
supplemental
dice that exists whenever
approves
reversible
Allen, but
it finds
given.
addition,
instructions are
re
In
any departures
from
are made
error when
salutary
form would
have
effect
language.
approved instruction’s
the
Compare
removing
overly
ap
fertile source
States,
Burroughs
10
v. United
peals.
however,
panel,
As a
arewe
Thompson
431, with
365 F.2d
1966,
Cir.
choice,
free make
over
for we can
Allen,
1956,
10
* Verbatim. according got questioning, direct town, tight, he somewhat statement: “On ending up night testimony, at a of March to his own I was off drinking Holly Springs at and out of uniform. I restaurant was concerned drinking investigating coffee and those He was because officers coffee. sobering up robbery Byhalia process when two bank the patrolmen seemed to think something him that I- robbery in and took to the had came to with that do lounge, they police con- where station indicated three up. twenty-dollar him to sober He was of the tinued efforts bills taken in the coffee, robbery to he was allowed ques- more A had been me.” traced to sleep tion several hours. taken of answer statement was Snodgrass the defendant and was according A.M., he awakened At was signed by the defendant. statement This accompanied plan other officers Commissioner, was then sent to the who Stringer Pontotoc, was Chief where adequate read it and found it an basis Jackson, They Mississippi, met. arriving went suspending for from the defendant approximately o’clock there patrol thirty days for because of viola- morning. They definite had no anti-gambling regulations. tion of the appointment time-wise with the Com- missioner, for but were there the time dur- At of this interview and having taking it, purpose Cris- Commissioner course of the Snod- grass any not there was ler determine whether or no coercion kind. exercised suspend threats, a defendant as cause to There no no were there were patrolman intimidations, of the promises of his violation because no there were day gambling. regulations against made him defendant induce being interview, before, the first rejects talk. The Court the defendant’s gambling had activ- happened defendant admitted version of inter- what at the extending period ity part a on his over Snodgrass view conducted Mr. virtually days conceded that Snodgrass some as fact made finds regulations. he had representations violated help no or assistance defendant if made he a statement office, headquarters At the he was implicating himself in rob- the bank Snodgrass, super- terviewed Mr. bery. visory officer, company Chief Stringer. began ap- This interview giving hand, after On the other proximately morning, in the 11:10 Snodgrass to Mr. statement —exhibit Snodgrass not started until Mr. was voluntarily defendant himself four—the rights read the himself had form to brought up in that some the conversation accused, understood, who who said that involved seemed to think he was officers Snodgrass ready he was was to talk.' robbery. This was a bank conducting part this interview as brought frain of what defendant leading procedure administrative before, day up in the conversation defendant, likely suspension of this robbery is, injected he the bank grounds existed. point, At into the conversation. Snodgrass Snodgrass also that because of told the defendant knew matter, money in that marked and other circumstances interested was not carrying suspect out that the 'defendant in the concerned with review, robbery, pre- if the bank a matter of administrative crime, caution, gave Mi- in the defendant was involved such the advice enough warning purely uniform randa to the defendant think he should get straightened precautionary out. out of measures. Actual- that he wore during inducements, ly, state- no There course statement reference, any followed, better it would be ments of kind any dealing appearing page seven, state- make the defendant impli- robbery, kind bank the defend- ment of brought himself, up ant cation. *18 good Now, friend defendant had Crisler told the After Commissioner for an n attached Bryant highway patrol, suspended to the that he was defendant regula- House, had served he anti-gambling a man with whom infraction upon beginning job dismissed, patrol and tions, since then defendant was fatherly depended for advice. back whom he and he came was over the mission P.M., Bryant Holly approximately o’clock highway patrol At car in the get interrogation in the asked defendant House Springs. There was no telling him, he gambling patrol him that regarding car with of him either him,. any- defendant robbery or to talk wanted the bank activities or thing Bryant House, fact, agreed trip. In to ride with return on this else unusual, as it was not at all enroute this was customary no discussion had been there together patrolmen ride Holly Springs from Jackson patrol They any went cars. matters. of these purpose of the adminis- for the Jackson damaging Bryant House knew procedure, administrative trative implicate had been obtained to evidence procedure conducted, a decision was was robbery the defendant on the bank charge, Commissioner, conclud- made fact, he In and told him so. he trip. object purpose of their ed the and expect to be defendant he could told Holly Arriving Springs at at back that, any arrested for it time. With P.M., Chief approximately o’clock began crying elderly man with Stringer enforce under was attach- burst of emotion because of his put sus- order to the Commissioner’s concern, defendant. Out ment to the step the first pension effect and into Bailey that House the statement to made get uniforms of that towas did he rob the bank would better para- official equipment and the other guilty, plead for him—the defendant —to possession of the phernalia of the out lighter expect sentence that he could purpose that for that defendant. It was from court. highway patrolmen went several The defendant himself then became Bailey, the patrol Mr. one car emotional, saying, ready effect, he was patrolman defendant, went another it, ready did admit he and was separate patrol had car. No arrest in a At to confess that he robbed the bank. point, had been been made at moment, the defendant was not arrest at that no point. to make an intention custody, no arrest had been made including men, the de- All of the any officer, or no order House other law fendant, resi- at the defendant’s arrived gone had out for the defendant’s arrest. dence, got the uniform and the where he company The defendant still in equipment, ac- other it was checked off with, knew, a man that he well riding worked cording list, it turned to a over familiarity in cars that had he the officers. going house, a with and place to the court had, Now, point, at that defendant regu- daily frequent he day at about 3:30 P.M. on before larly. court When he went into the day, approximately and at 11 A.M. that house, it been was not as one who had given warning the full Miranda person custody arrested as a rights, fully which he understood and who wanted to make a statement appreciated. significant It is most voluntarily law-enforcing officers rights him each time the give reaching up. Upon himself he denied connection bank house, hall and first in saw robbery sought to turn aside insinu- Office, of- later the law Sheriff’s thought persons ations that other volun- made the ficers to whom then robbery. connected with the bank tary one who statement that he was the At no did he make statement time ready to the bank and was robbed that incriminated him in the bank rob- bery. give up. himself *19 to the defendant returned officers At local law time as these As soon began voluntarily statement, they house and notified the court heard this making impromptu home agent, for his to sev- had left statements who FBI concerning guilt, agent, upon he was his eral officers undoubtedly his The FBI at Oxford. possession facul- and of his turn, Office into Sheriff’s went crying, to ties. had been had if which wanted He defendant he asked the talk, brought did, by and been on communications said he defendant rights gave agent his talked about their him wife and thereupon rights young Indeed, Bailey children. broke The third executed. form to be emotionally up- by wept; down defendant was he executed form was might expected Fol- set under such five. well be number as
court house—exhibit form, circumstances, not af- lowing but his mind was execution fected, overpowered. gave to his not factual statement will was defendant outlining participa- agent the FBI Now, my are as of law conclusions robbery it was and how tion the bank follows: oral- was accomplished. The statement agent given ly in the Sheriff’s to the FBI OF LAW CONCLUSIONS quite before a little while Office First, found that on the facts signed by actually de- writing was considering all of the circum- Court and fendant. case, are indeed stances in this into the had come defendant When unusual, unique holds that the Court he made known Office Sheriff’s adequate sufficient an there was expressed a robber, he also was bank warning rights giving of Miranda Crisler, Commis- to to talk Giles wish comply stand- and that did with the Safety, had he whom sioner of Public put required in order to ards the law day. Crisler earlier seen at Jackson he on notice was this defendant Bailey gotten asked line and on the was give required compulsory incrim- not to give up himself if he wanted inatory he He knew that statements. Bailey Then did. patrol. that he said did required that he knew was not he arrangements special made Crisler if he not have to talk and he knew agent fly Holly Springs FBI with an talking he started could terminate arrival, they talked Upon from Jackson. right time, that he had the he briefly and when defendant attorney. Now, was assistance of he ready to said he was had done so he rights knowledge those in the schooled sign the statement. lawyer, much indeed as as as a much intellectually judge. he knew So talking to time that he was At the rights understood he those and he had House, defendant was Patrolman rights in this for him those meant what faculties, he possession mental of his situation. quite responsive and he was aware was facts, a Miranda rights As found situation before and of the warning him at specifically evi- was told that much He had been him. against of March on the afternoon him and P.M. 3:30 dence had been secured on A-.M. going approximately o’clock and at he to be arrested morning under- weighed He robbery. fact. of March the bank He merely rights stood them. The given his mind the about He had on burden sign, committing but robbery, up him as forms the bank successfully. complied the officers point were vestigating had concealed it There says these matters. himself in his tes- The defendant timony Stringer, overreaching part that his friend House did question- Snodgrass in promises sim- or make Rabideau or inducements He was giving defendant. ply fatherly advice, him i. pressured coerced, expect lighter intimidated e. he could sentence freely talked, talked way. guilty. pled When *20 voluntarily to men. And later The those defendant himself on the stand said day, approximately any promises, at o’clock did that House not make Agent P.M., promise anything, yet FBI Rabideau did when not him Holly suggest might court turned to the house House did himto that it interrogation any Springs, to before be plead the defendant’s if he benefit would rights defendant, presented guilty get light- he form in that he would it, defendant, to the the defendant read er sentence. signed understood it and it. And there The Court holds that these cases cited by. overreaching was no of the defendant by Government, United States v. Agent Special Rabideau or the other Cir., Ferrara, 377 F.2d and United might present in officers who have been Frazier, Cir., States v. 434 F.2d the court house at the time the written very point. much in In the first prepared. factual statement was place, case is a Fifth Frazier Circuit by unique- presented opinion adopted The situations and it the rule of the sig- upon legal this evidence centers Ferrara case. The Frazier case ais Frazier, nificance to be accorded the conversa- 1970 decision. In said Bryant tion Patrolman House between that defendant’s confession was not ren- involuntary single question by and the is dered reason of the defendant. agents under all these circumstances fact whether that the FBI him that told give Bryant cooperated coopera- the failure of House to he them warnings plus Miranda affirmative tion would be made known the United Attorney might statements that made effect States and that be given by that it would be better on the defendant some consideration the United guilty get plead Attorney agents in that he would States lighter doing, promises. Now, so whether could make no sentence the Fifth ensuing confession, said, “Standing that makes the Circuit alone this was incriminatory first appel- was the state- sufficient establish that ment, involuntary in-custody and coerced as a mat- lant’s tary,” citing involun- statement was ter of law. The case to be one seems United States Ferrara. any precedent. exact factual Ferrara, testimony In was that holding, difficulty The Court has no only confession was obtained after an first, agent admittedly accused, that under those circumstances the FBI told the warnings Miranda cooperated did not to be “If have we United States given by get House for several reasons. Attorney, he felt sure that could First, going to conduct an out on holds reduced bail.” The Court interrogation; secondly, the defendant the evidence under that House made custody was not arrested and promise was not in kind the defendant And, technically, giv- at that time. did not therefore his statements warnings of the Miranda partake con- as a of such nature as make them precedent talking dition defend- inducements to the defendant. required. ant was not Now, might any time the defendant brings That freely Court to what it re- he crime, get decide to confess saw fit gards as the question conscience, ultimate in this un- it off his be Bry- case—whether statements con- burdened to that extent. The Court ant House told the defendant and which did on this cludes that that is what he making talking friend, House admitted on the stand Pa- occasion when to his enough psychological constituted House, to trolman statements that his inducements way invalidate in no induced coercion say enough is, confession. That kind, physical did either direct really overpower mind, psychological. the defendant’s conclu- indirect and deprive will, him of his free and cause sion is reinforced the fact that he was him involuntary time, make ? statements under there had arrest at the threat House that he
been no going to arrest him. TV, INC., SERVICE ELECTRIC CABLE Petitioner, can conclude from these The Court beyond facts, indeed it must conclude FEDERAL COMMUNICATIONS COM- doubt that this confession was reasonable MISSION and United States of voluntary. its And voluntari free America, Respondents, beyond proved a reason ness *21 the defendant made able doubt. When WBRE-TV, INC., Broadcasters, Scranton statements, his not broken these will was Inc., and Broadcasting Taft Com- overpowered. At nor his intellect pany, Intervenors. emotionally most, upset because No. 71-1848. implications wife and chil himself, dren as to as well Appeals, States Court of reason his will either Third Circuit. to House. when he made these statements Argued Sept. 12, 1972. by the fact This is also borne out Decided Oct. through involuntarily he followed making impromptu manner other guilt statements of to officers whom house.
knew at
Considering facts, all the Court suppress
holds that the motions to
evidence are not well taken. The Court produced further holds that the evidence several made in searches constitutionally legally obtained
on valid consent waivers. That will.be
the Order of the Court.
ON PETITION FOR REHEARING
AND PETITION REHEAR- FOR
ING EN BANC BROWN, Before JOHN R. Chief
Judge, WISDOM, GEWIN, BELL,
THORNBERRY, COLEMAN, GOLD-
BERG, AINSWORTH, GODBOLD, DY-
ER, SIMPSON, MORGAN, CLARK, IN- RONEY, Judges.
GRAHAM and Circuit
BY THE COURT:
A member of the Court in active serv- having requested
ice poll ap- on the plication rehearing en banc and a majority judges in active service having granting voted in favor hearing en banc. It is ordered that cause shall be
reheard the Court en banc briefs argument. without oral The Clerk shall briefing set a filing schedule for the supplemental briefs.