*2 Judge, HAYNSWORTH, Chief Before BRYAN, SOBELOFF, BOREMAN, Judges. BELL, and J. Circuit SPENCER PER CURIAM: following opinion written Judge, Winter, who Harrison L. District sitting assignment court with the After heard. when the case was first opinion rehearing banc case en adopted opinion full as the also noted examina- court. that no mention record possibility of made in the offense. of a lesser included verdict retried the case is We assume if Judge corrected. this omission will be opinion Winter’s follows: serviceman, discharged Appellant, a degree murder of indicted for first Cortney on the United States Reed Bragg, military of Fort reservation per- alleged Carolina, to have been North Upon May 5, petrated on or capital guilty jury’s verdict of without punishment, was sentenced challenges slept imprisonment. between life left the room in which he following legality on four of his conviction 9:30 and 10:00 o’clockA.M. the orderly morning grounds. Essentially on constitutional was seen in room, approxi- grounds, post, con- that certain elsewhere on the contends he. contradictory May flicting mately Monday, statements time. the same interroga- 7, 1962, response made him in the first muster after *3 by 1962, Federal the as A.W.O.L. certain the deceased was listed May 1962, decomposed Investigation, 17, badly after Bureau of body grave ostensibly arrested on a found in foot viola- was a two sandy parachute a ly drop tion of called the Act and he area “Sici- Zone,” appeared Drop a United States Com- which about 10.4 requested opportunity area, missioner and miles barracks and which from the employ counsel, counsel had was a but before zone familiar both to deceased by him, appellant. body been and obtained should not have be identi- could “dog tags” Secondly, pocket fied been admitted at trial. he from found in body circumstan- contends that two items of trousers on from four and fingerprints pa- tial evidence establish the fact that hand. No fight per parking money body, occurred in a lot on the found on the and night army up on reservation search of area turned an old killed, pair probably deceased was trousers and handled a black hunting fact there car was dried blood on a knife identified similar following parking morning, lot the possession seen in on May not, evidence, should under the law 1962. The knife bore traces of blood, type have been A admitted the trial. third human but the could blood by contention a letter written be determined. The trousers con- appellant wife, particles blacktop to his in which ex- tained of macadam or pressed purchase an intention to an auto- in the abraded area. ascertained deceased, approximately mobile owned properly im- death had occurred judge days before, excluded seven district to ten aas result of and, lastly, appellant penetrating through contends that there stab or wound was insufficient evidence which chest and heart knife knife- jury guilty body could have like found him instrument. was dis- charged. digested partially the crime which was covered food of the type served at the mess hall for the Early appellant in 1962 and the de- Artillery noonday 16th Battalion at the ceased were both members United May 5, meal on expert 1962. There was Army, Headquarters Battery, States 16th testimony that this food was consumed Artillery Battalion, Bragg, Fort North hours, two to six and not more than Carolina, part of the 82nd Airborne hours, prior twelve to death. Division. The deceased owned hardtop automobile, Ford and was discharged Appellant from mili- park deceased’s custom to vehicle on tary May 4, 1962, and received service on parking about lot two hundred feet separation pay He did $98.74. from the barracks which he and the immediately, leave the remained base but appellant lived. The vehicle inwas need around the barracks until the even- area repairs, arranged deceased ing May in5 certain order settle repaired shop have it a craft obligations attempt minor financial reservation. obligations collection of such as were about, Delivery repaired car was made due him. It wás shown that at Saturday, May the deceased on appellant noon while tending packing bags, 1962. There was evidence several different sol- occupied show possessed that he his bunk in a diers observed a black sleeping hunting knife, locked room to which he handled had a beer keys night, one of opener three extant that can on At near the handle. signed by transfer, purportedly the de- P.M. that about 2:00 cer- acquaintance ceased. The dealer noticed beer consumed some no- sale or was not officers club tificate of transfer the non-commissioned signature hunting tarized, purported where, again, was seen. knife Fayetteville, compare they with the the deceased did not From there drove signature papers. Carolina, on the The deal- other where consumed North Bragg communicating suggested beer, with the to Fort er deceased, returned more Appellant departed said that 6:30 P.M. did not whereabouts know friend deceased’s from his and stated discharged from the because he had a half hour later been another soldier about leaving as a service. The advanced that he would be night; home couple for the the fact that license reason sale and a married that he plates expensive. driving City. and insurance were too to New York would be *4 night of on At 10:00 P.M. about Obviously, dealer, an- car the used May 5, appellant entrench- borrowed an appellant other to whom also tried to sell stating soldier, tool from another car, suspicious became and commu- going to that he to Southern Pines was suspicions nicated his to the Federal lady move, help a he and that would Investigation, fol- Bureau lowing.day, because the him return it was lent later. The tool P.M., appellant was at 10:55 it. and he midnight About left the barracks with by City arrested two York detec- New tool, he which was returned the apartment tives outside of house in his subsequently it. found to sand on City charge New York on the basis of Sunday, transported that he had auto- on a stolen About 4:00 or 4:30 P.M. 6,May appellant mobile in knowledge New interstate commerce met his with wife in testimony City. was the vehicle stolen. York There was early arrest, At the and his while he had first arrived there as time standing apartment possession Appellant outside build- noon. was in ing, appellant advised that did Ford was was he deceased’s 1957 automobile. It any information, stipulated have to furnish New York is six hundred any Bragg, did requires information he furnish from Fort miles and against driving could be used him in a court of fourteen time. hours of law, and that he had a to consult give to facts We now come attorney prior furnishing with an in- first contention. rise Appellant request formation. made no May 24,1962, stopped appellant On for nor he did disclaim desire police York officer for a traffic New any to make a in- statement or furnish driving Ford violation while the 1957 formation. Appellant hardtop automobile. said Appellant Pre- taken to the 80th from the had borrowed automobile he questioned cinct an Station and for about deceased, of sale and he exhibited a bill hour an vesting detectives and in- and an title in the deceased agent F.B.I. driving trans- only the interstate policy. license surance His portation charge, employment and Tennessee, which ex- one from employment. Appellant service, former stated during pired tenure agreed buy that he had driving the deceased’s received a summons early April, car for operator’s $300.00 expired permit an gave that he deceased at the time days appellant $75.00 released. Two later agreement, mid-April, attempted $50.00 to a used the vehicle sell and the balance on 4 or near a Brooklyn, York. When car dealer in New Although parking Bragg. lot at Fort asked for the title drove the dealer gave appellant claimed that the deceased apartment, blocks from to his several receipts money, for the lot, apartment and used car went into produce Appellant could not them. stat- exhibiting title, on the back out came ed that had not seen the deceased a certificate of sale of which
837'
payment,
alleged
$50,000.00
that he
au-
last
theft of an
he made the
since
Saturday, May 6,
Bragg
tomobile, admittedly
more
Fort
worth
left
Sunday
18, 1962,
York on
after-
arrived in New
than
June
after
$300.00.
apartment
shortly
noon, May 7,
statements,
went to the
be de-
the oral
scribed, appellant’s
wife.
he met
where
bail
reduced
before
$25,000.00.
appearance
A.M.
approximately
At
4:10
4:15
until
Commissioner was continued
5,
June
agents
at the
arrived
two other F.B.I.
and then until
June
June
custody
and took
80th Precinct Station
to obtain counsel.
enable
They
appellant.
to the
removed him
Appellant did not
counsel until
obtain
question-
F.B.I.
office. En route
September 18, 1962,
counsel was
again being
further,
advised
ed
appointed
represent
trial
him when his
statement,
to make a
that he did not have
Act
was about to be-
against
could be used
gin.
acquitted of that
He was
offense
him,
had a
consult
and that he
and not indicted in the
case until
stealing
attorney. Appellant
denied
September
purchased
and stated that he had
ear
making
According
three
appellant’s testimony,
from the
deceased
having
payments.
attempted
cash
He admitted
one of the F.B.I.
Bragg prior
following
to his dis-
knife at Fort
charge,
interview
appellant’s
after lunch
appearance
but said
it under
left
return from his
*5
post. He de-
at the
mattress
his bunk
before the United States Commissioner.
opener on
nied that the
a can
Appellant
any
knife had
make
declined to
state-
handle,
asked
and
if
ment.
any way
involved with the death
May
On the afternoon of
ap-
complicity. Then
deceased he denied
appearance
after the initial
pellant
desire
indicated that he did not
Commissioner,
United
and before
States
any
to furnish
additional
information
appellant
obtained
two F.B.I.
interrogation ceased.
A.M.
and
At 6:00
agents again
appellant at the
interviewed
appellant was removed to the Federal
approxi-
House
Federal
for
Detention
City.
of Detention in New York
House
mately
began
four hours. The interview
P.M.,
appel-
at 1:00
with a statement to
morning
May 28,
Later in the
lant of the now familiar recitation of his
rights. Appellant
appellant was taken before a United
told
that
City.
States Commissioner in New York
agents wanted to
talk to him about
car
appellant
The Commissioner advised
that
regard
to which a warrant had been
required
any
the latter
to make
alleging
stolen, and,
issued
car was
statement,
he did
further,
the fact that the owner of the
against him,
make could be used
and that
military
car had been found dead on the
attorney.
had
Appellant
he
responded
an
Bragg. According
reservation
Fort
stating
had
either he
testimony
agents, appellant
attorney
present,
an
who was not
or that
freely
talked
of these matters. Accord-
attorney
get,
he knew of an
could
he
appellant,
he declined to discuss
hearing
adjourned
and the
to a later
telephone
them until a
call was received
up
date. The Commissioner then took
being
in the room in which he was
inter-
of bail. An assistant Unit-
agent
rogated,
appellant
an
advised
attorney
ed States
who was
ad-
forging
had
wife
admitted
the cer-
Commissioner,
appel-
vised within
tificate of sale to the deceased’s automo-
hearing,
although
appellant,
lant’s
bile
prosecuted
and
ap-
would be
unless
arrested on
violation of
pellant cooperated,
appellant
and
conclud-
being
Act,
suspect
held
as a
get
ed that he did not wish to
his wife
case,
in a murder
also. The assistant
involved.
attorney
ap-
United States
asked that
pellant be
During
denied bail. This the Commis-
signed
interview
do,
sioner would not
but fixed bail at
no
statement,
written
and he continued
alighted
guilt
from the
and
deny
matter about
vehicle
was seen
either
by appellant.
questioned,
answers
for
time
but his
the last
which was
he
reaffirmations
not mere
were
statement:
To continue
oral
Rather,
am-
previous
were
denials.
Appellant
he next returned to the
said
denials,
previous
plifications
belongings
barracks, picked up his
contradictory,
part
infor-
and contained
May
Bragg
P.M.,
left Fort
about 11:30
jury may well
mation from which
City,
5.
ing
York
He drove to New
arriv-
false
concluded that
made
days
5:30 P. M. A few
about
exculpatory statements.
he lost
contained
arrival
his wallet which
substance, appellant
Subsequently,
dis-
stated that
the bill of sale.
purchased the
covered that insurance rates
an auto-
had
car
$300.00—an
part
City
payment
high,
the first
mobile in New York
initial
$50.00
April
April,
about
so he concluded to sell the automobile
$75.00
May
remaining
attempt
5.
it in Brook-
and the
make
sell
$175.00
lyn.
cash,
Appellant repeated
previous
Payments
de-
were made in
gave appellant
receipts. Some statement that
had
the deceased
shown
ceased
money
pay
deceased him
fill
used
how to
certificate
trans-
regis-
debts
fer on
the back of the automobile
was obtained
the collection
proceeds
document,
appellant,
tration
contradicted
well
then
owed
injury
stating
personal
himself
deceased
of the settlement of a
suit,
discharge pay
approxi-
executed
later,
transfer on
Still
signed
mately
11:00
he admitted that his wife
received about
$96.00
day preceding
papers.
A.M., May
dis-
deceased’s
name
collecting
charge,
said that
gotten
his
purchase
he had told wife
but after
$185.00
money
him,
that went to
the car
owed
said
doing
bought
guard
duty
Fayetteville,
Carolina,
and K.P.
for others
North
Bragg,
whiskey,
spent
while
Fort
hours
but that this was
some
several
just
story
girl.
met a
which he had told his wife.
with a
Later he
man who
*6
gave
knife,
spent
hunting
him the
and
Appellant
three conten
makes
night
girl
Fayetteville.
with a
in
why testimony
oral
tions
of the
state
The next
racks,
bar-
returned to the
of
ment which made
May
afternoon
the knife
showed several soldiers
have
29 should not
been admitted
day before,
he had received
argues
into
that admission
evidence. He
placed
and
knife
mattress.
under his
Rule
was in violation of
post
then drank some
and
beer on the
Procedure,
Rules
Criminal
5 of the
of
Fayette-
went with a soldier friend to
arraignment
there
be
because
post
ville. Later
and
he returned to the
fore
necessary
“without un
Commissioner
met
P.M. on
the deceased about 8:30
delay.”
argued
Second, it is
parking
lot
near the barracks.
re
was obtained
that the statement
as
the deceased’s
the deceased
automobile
and, third, that
sult of mental coercion
gave appellant
papers
and
insurance
regard
of
was with
registration
together
certificate,
with a
than
for which
fenses other
those
reflecting
appellant
bill of sale
being held.
In our view
defendant was
paid the deceased
deceased
The
$300.00.
correctly points
out
the Government
appellant
appellant
fill
cer-
showed
in the
how.
promptly
taken before
of
tificate
transfer on the back
hearing
preliminary
commissioner and a
registration
appellant
in case
certificate
adjourned
to obtain
to enable
Appellant put to sell the car.
wished
Thus,
there is no issue as
counsel.
illegal
then, at the
in his wallet
bill
sale
5
in violation
Rule
detention
request,
States,
the latter
Mallory
drove
(a).
deceased’s
U.S.
354
v. United
Bragg
1356,
449,
Fort
839
brought
recognition
government,
first
before
by
and, indeed,
presented
appeal,
ar-
after-
real issue
continued twice
Illinois,
gues
that Escobedo v. State
ward to enable the
to obtain
1758,
478,
378
84
12 L.Ed.2d counsel.
U.S.
S.Ct.
gov-
(1964),
inapplicable.
977
What, then,
significance of an
is the
particular
ernment
attention to
draws
by
counsel,
expressed desire for
followed
language appearing
490-
at 378 U.S.
taking,
police,
at the
instance
491,
1765,
where it was said:
S.Ct.
by
incriminatory statements, preceded
hold, therefore,
where,
“We
rights,
a recitation of
formal
investigation
longer
here,
is no
expression
of the desire for coun
general inquiry
crime
into an unsolved
sel, but
had been ob
begun
particular
but has
on a
focus
tained?
found
our
Our answer is not
suspect,
suspect
in-
has been taken
previous holding in Davis v.
State
custody,
carry
police
police
out
Carolina,
(4
North
F.2d 770
Cir.
interrogations
process
that lends 1964),
holdings
nor in the
Jackson
eliciting incriminating
itself to
state-
States,
U.S.App.D.C. 100,
United
ments,
suspect
requested
has
(1964),
935,
den.,
F.2d 136
cert.
380 U.S.
opportunity
been denied an
to consult
944,
(1965);
85 S.Ct.
to counsel * * * custody much as and before fendants police [are] into was taken extending dur- formally indicted, such aid counsel] entitled to [of thus suggested period the itself.’ right the as at trial far in as as 59, true, S.Ct., Id., opinions. at at Spano concurring [53 57 U.S.] [287 Spano course, L.Ed. And since 158]. Escobedo there was 77 in accused decision same basic constitutional the element that the broadly right principle been reaffirmed to remain has informed been by silent, denied his this Court.” had been attorney, al- request with his to consult right during Thus, to counsel though some indication there was by pre-indictment period, established as sig- lawyer’s understood his accused something case, Escobedo means nalling admonition to remain him as an right of the than mere reiteration more 480, 1, 84 at n. S.Ct. silent. 378 U.S. only general rule, As to remain silent. case, appellant dem- In the instant pres- interrogation in the fruits of previous conduct that onstrated constitutionally ad- are ence of counsel nothing rights, there is knew subsequent We are at trial. missible ap- indicate that he understood or to answer thus constrained conflicting preciated ex- false or by stating posed we have culpatory es- statements could be used to right was denied the to counsel. guilt. tablish his we The fiat of the rule extending By doc the Massiah subject ease is in this should announce pre-indictment period, trine to the qualification. to some applicable Court in Escobedo made counsel, most other constitutional like preindictment period the considerations But, pointed may rights, waived. opinion expressed it its 439, Noia, 391, 83 Fay U.S. out in v. quoted In Massiah case. Massiah citing (1963), 822, L.Ed.2d 837 S.Ct. opinion from York New Court Zerbst, 458, 58 S.Ct. Johnson v. Appeals approval, lan with and added (1938), is a waiver 82 L.Ed. guage from its earlier decisions relinquishment or abandon intentional (377 follows U.S. 84 S.Ct. privilege. We of a known ment 1202): to counsel no waiver find “ ‘Any secret Here, appellant manifested record. finding defendant, after the coun exercise his his desire to indictment, protec- without other For of conscience sel. reasons presence tion afforded of coun- con wise, additional not initiate did sel, contravenes basic dictates of F.B.I. about versation fairness of criminal conduct charged, which he was the matter with rights causes and the fundamental investigating. or the homicide persons charged People with crime.’ solely interrogation was initiated His Waterman, N.Y.2d 565 [216 elapsed that had F.B.I. the time 445, 448. N.Y.S.2d 175 N.E.2d 75] ap request consult since *8 lawyer if pellant a “This view no a obtained more than reflects could the employ and had principle constitutional as of one to established he knew ago him; long Alabama, employ it cannot 287 to as Powell v. means 158], have a that failure to U.S. 45 L.Ed. said [53 S.Ct. ‘ * ** re approximately hours where the Court noted within that delay part, during quest perhaps pe- on his unreasonable most critical was the * * * indefinitely postpone proceedings attempt riod of to the or an part say, to submit whether that is to from the time of their decision on interrogation. fact, arraignment never beginning In until to the was counsel trial, consultation, until to obtain counsel their thor- able States, represent trial siah v. United appointed him at the to charge. Dyer at 1203. if dis- S.Ct. Act Even we why assigned appellant’s reason believe turn to items of circum- next We permitted in- himself to be he thereafter con- stantial evidence which nothing rec- terrogated, in this there is should not have admitted tends been change express support of mind to ord testimony of his trial. The first is the con- appellant’s part of his desire to assigned sergeant sleeping who to was departure from and a sult building appel- quarters the same in previously exercise desire to announced sergeant testimony of was lant. The lightly inferred. should not be 5, 1962, that, evening May appellant had a to A statement that about 9:00 P.M. the barracks silent, here, in- remain on the facts running heard when he and friend respect to overcome the sufficient yell parking lot outside. The in the expressed to consult which his desire two went to the window and saw two counsel entitled. This running people parking lot. down the interroga- response here followed lights off, The friend turned interior nothing more, with is insufficient they plainly, could more so that see form a for waiver. conclude basis We person another, chase saw saw rights that did not waive his up him and the first catch strike Amendment, under the Sixth and admis- repeatedly, one of the two saw testimony concerning sion what he ground. fall to The other then went response said in got car, lot, parking into a back he claimed the was re- through lot, and turned in be- drove versible error. ground. object per- side an on the The driving got it, put son the car out government argues, citing Mas- away. object in the car and drove Visi- States, supra, siah v. United it had sergeant bility was not such right, duty, interrogate ap- indeed a say object placed could pellant Cortney the death of Reed. give body, car nor de- was a could argues unquestionably there were seen, scription of individuals includ- good grounds to arrest on the Also, color. unable their charge, Act and that this arrest identify of the automobile the make interroga- should not immunize him from object which the taken which was tion about other serious crimes. doWe ground was removed. arresting may not decide that authorities sergeant testimony person arrested about oth- first offered ruled inadmissible when crimes, government er serious or that relevancy. prior This lack of duty investigate had no appellant’s answers to ad- time Cortney death of Reed. The record interrogation, we in- ditional find appellant, case is clear al- admissible, put Af- into evidence. though formally arrested for violation of admitted, appellant’s ter answers were Dyer Act, custody was retained in judge ruled the testi- the district then possible implication because of sergeant mony admissible, Reed; Cortney hence, death of we do not was received. government see the distinction which the it was context in which would have us draw reason of the testimony received, think we grounds for arrest stated in the warrant. sergeant and material. was relevant “ * * All that we decide here is that must be retried because the case Since incriminating the defendant’s own state- an of our conclusion ments, obtained federal under interrogation, dowe swers to additional disclosed, the circumstances here could *9 the testi to add that not think it amiss constitutionally by prose- ap be used the mony admissible, even without was interroga- against pellant’s cution him at his trial.” Mas- answers to additional 842 May By testimony, appellant on the week- 6 then was week-end other
tion. May motion to strike to the barracks end of 13. The to have shown returned granted. night testimony on have been 6:30 P.M. the should or 7:00 area sergeant the de- events of the which Appellant’s third contention scribed, it that and was further shown excluding a let is was error in that there shortly after incident which the ser- the Appel by to ter his wife. written geant appellant described borrowed the wife, divorced from whom he was lant’s testimony entrenching other tool. Still trial, called as at the time of the was appellant effect that stated was the government. cross- On witness for the payment of that made a $175.00 examination, letter she identified parking near lot to the deceased in or the The to her. which had written May Bragg May Fort May Bragg, postmarked letter Fort was although Thus, circumstantial testimony A.M., 3, 1962, and the 10:30 conclusive of mur- whether by appellant’s received night the deceased that and buried dered prior May In former wife body, we think suf- the evidence was contention, pertinent sofar this ficiently by relevant considered be you stated, I have a car letter “as know jury given weight jury such top.” Ap now. Ford It is ’57 hard thought it deserved. Our comments pellant sought into to introduce the letter regard this are based the record immediately govern evidence us, excluding any consideration ment’s closed and case was testimony have ruled inadmis- we judgment acquittal motion de proof sible. If on retrial to demon- nied. relevancy differs, strate the district judge properly excluded district The judge will be free to rule on the matter Although ap- letter. original question. as an argue significance pellee the “self- serving” aspect other The circumstantial evi of the letter as affect- light. admissibility, dence stands in a different It was its concluded we have testimony hearsay of another soldier the letter evi- constitutes May 6, approximately any 9:00 9:30 A. dence and does not fall within M., go recognized exceptions hearsay he left the barracks rule. out to ed.); (1954 McCormick, car that a friend had lent him. theOn Evidence § appeared (3d Wigmore, car he noticed what blood Evidence ed. § front, side, 1940). hearsay exception on the most the front grille. nearly pres applicable blood-like substance to the would be letter sign permits ent without other the one the vehic which declarations design object. prove le had been collision with a conduct. solid intentions them, rule, Mc- cross-examination this As as stated soldier ad “ ** say Cormick, supra, p. mitted that he unable is whether § plan, the occurrence to de- which he had evidence declarations of a testified place sign presently May took on the or intention entertained week-end 6 or is, subject the week-end usual 13. After declarant ad cross-examination, mission on as to in time a motion limitations remoteness apparent sincerity testimony, was made to decla- strike common to all state, time,” was overruled “at rations of admissible when mental design the motion was offered as not renewed. our evidence is relevancy testimony view that carried out acts omissions however, tenuous, say, is absent a declarant.” We cannot scientific basis that judge beyond in error when substance the district was blood mere layman, observation of “I a car to mean read now” rele vancy accomplished unsupportable rather a statement act than where the wit certainty to obtain within ness had no intention a car more reasonable future, though rec- that his even observation occurred foreseeable on the *10 charge only Dyer possession formal a Act vio- in Reed was still indicates ord lation, everyone the case made. connected with the statement the car when of graver appreciated presence im- of Finally, appellant contends (fn 2) plications. rec- The dissent itself acquittal, made judgment a for of motion ognizes prosecutor this. The had this government’s case close of at suggested $50,000 mind when he bail of evi- the case, of all renewed at close have been and agreeable Commissioner could been have should dence suggestion only on the to the grounds granted that there was on the premise dealing that he legally on which insufficient evidence charge. probability of a murder guilty. jury haveWe could find him discussion in Miranda The carefully the record and con- reviewed Arizona, 436, 86 S.Ct. of State 1602, con- in this clude that there no merit entirely (1966), L.Ed.2d 694 is unnecessary re- deem it tention. We rely point for do not beside the we which lead in further detail the facts cite be Miranda here. Escobedo was decided items two us to this conclusion. Because question fore case was and no this tried improperly admitted evidence retroactivity a man is involved. or When and, trial, appellant retried must be indicating held in default is bail testimony respect true with to the as was arrange FBI a desire to sergeant fight, concerning should not return judge district will be to rule on free any phase subject matter until legal sufficiency matter evidence opportunity has consult had the guilt original determine on retrial as an lawyer. the circumstances of In question. get permitted to have case should been stated, judgment For the reasons rights explanation from an lawyer reversed, of the district court and the is speak then to elect whether case remanded for a trial. new Slaughter had or remain silent. Before opportunity, the FBI should this engaged ADDENDUM designed him conversations dissenting obtained him. Admissions Our to condemn by brother sees a distinc- solicitations, sandwich renewed between the such Act warnings, in effect charge, viewing questions with the murder defend- coun defendant denied the ant’s assertion of a desire to consult our constitu is his due under sel which counsel as limited to the former. The FBI policy. Reiteration such tional dissent states that “if [the defendant] “warnings” for the cannot substitute legal speak had wished to professional telephone advice which he would allowed to have been FBI, must expressly requested. it undisputed do it.” But the fact accusers, remembered, express are his he did such a wish the United Commissioner, counselors.1 States case purpose. continued for this While the Reversed and remanded.
1. The Second Circuit
voluntary
cases cited
the dis
dissenters,
would
admissions
senting opinion presented
cir
different
still not constitute
waiver
cumstances.
Drummond
v. United
to counsel.
States,
(2d
1965),
HAYNSWORTH,
suspected
Chief
of the murder
senting)
of
ac-
:
Reed.2 The homicide was under
investigation
tive
which was to continue
my
opinion
I
to the
of
cannot subscribe
Slaughter
Indeed,
many
for
months.
my
respectfully
I
dis-
Brothers.
record
charged
murder until
was not
with the
sent.
a
more
fifteen months later when
than
interrogation
free of co-
This
was as
grand
September
jury
him on
indicted
any
ercion
gation
interro-
and its hallmarks
9, 1963.
prisoner
of
on a formal
a
held
Slaughter
Clearly,
that
homi-
knew
charge
repeated
could
Done after
be.
investigation.
had
He
cide
under
rights,
explanation
of
ob-
to him his
though
before, and
about it
been asked
them, I
of
find no
for
servance
overturning
basis
knowledge
it,
of
he
denied
had
finding
District
Court’s
presence
was told
his
Commissioner
voluntary.
that
unnecessary
I think it
both
every
it,
suspected
he had
that
of
wrong
to distort
asked
reason
that he would be
to believe
Slaughter’s
to the Commis-
again.
about it
opportunity to
sioner that he wished an
lawyer
represent
Still,
express
a
him de-
obtain
to
intimate
he did
Dyer
charge
any
lawyer
way
of
into
his
fense
Act
a re-
a
a desire to have
lawyer
quest
any subsequent
dur-
At
the assistance of
side
interview.
after,
time,
did
occasioned
the continu-
interviews
either before
other
ing investigation
homicide,
express
or intimate
such wish.
he
thought Slaughter
expressed.
never
Slaugh-
day
May 29,1962, the
explained
presented
Commissioner had
to
Commis-
ter had been
Slaughter
Dyer
developed
sioner,
the elements of the
Act
addi-
had
offense,
right
silent,
conflicting
to remain
some
information
tional
against
Slaughter
possible
anything
story
use
him
he
the details
said and
suing
counsel. The
had
earlier about his claimed
en-
told them
They
purchase
discussion
the Commis-
between
the automobile.
Slaughter
sought
explanation
sioner and
about counsel was
of this additional
clearly
representation
question
referable
in the
him about
information
Dyer
case,
legiti-
specifically
perfectly
pre-
Act
the homicide. That
ais
liminary hearing.
Slaughter
investigative proce-
proper
When
said mate and
lawyer
thought
get
he had a
he could
dure.3
represent
proceeding,
him in that
asking
any questions, how-
Before
him
hearing
was continued to
him
afford
agents again
ever,
explained
himto
opportunity.1
talk,
anything he
need not
he
might
against him, and that
said
used
be
When the
of bail was taken
lawyer
be-
to consult
had a
up,
told
Commissioner was
thought
agents may
have
tomobile.
brought
judge
who has been
before a
on a
ease,
likely suspect
him
in the murder
capital crime,
of a
and has ex
suspect, but,
likely
at that
even the most
pressed
his desire for
is entitled
suspicion.
time,
had
than
no more
under
the Constitution
let
be
alone
circumstances,
Whether,
under
these
gets
until he
one.”
he had wish for the assist- *14 proceedings
ance counsel in the formal Act case. uniformly
The cases other courts my
support position. An uncounseled arraign-
prisoner, or after either
ment, may or, explicitly pre- in a waive case, implicitly,
Miranda
lawyer interroga- in connection with an expression of
tion after a wish lawyer.5 affirm.
I would Cir., Drummond, pre-Miranda v. 2 354 United States Each of those were cases (Drummond assumption F.2d had thrice been 132 decided lawyer permission telephone principles Illinois, denied of Escobedo v. State of opening post-arraignment At in- applica- 378 U.S. ble, 84 S.Ct. terview, agent last they told are here. agent nothing Though did prisoner denial. Even if a has denial, rectify Drummond him, he, earlier has consulted alone in the law- yer’s absence, may was held to have waived his waive lawyer’s in connection with assistance assistance in connection with an interview, responded interrogation. pre- because does so rights); readily explanation by responding readily, after case Miranda if he Currie, Cir., rights. 2 354 F.2d United States v. knows Commonwealth (prearraignment Pennsylvania Craig Maroney, after 163 interview ex rel. steps Cir., 22, 31-32, rehearing defendant had taken to obtain 3 348 F.2d ? succeeded); lawyer, banc, before he denied court en three Denno, judges dissenting interroga- ex Stovall v. 2 United States rel. because the (Judge Friendly’s opin- Cir., indictment, F.2d 355 731 352 ion, dissenting; majority 30; States, reach F.2d did not Babb v. United Cir., 863; Eyman, because found no 351 F.2d Loftis v. 920; post- Cir., to counsel connection 350 F.2d Beavers v. United arraignment States, procedure). Cir., F.2d