United States v. Hugh MacLeod Pheaster, United States of America v. Angelo Inciso

potential for violent Defendant’s “6. dangerous moderately behavior se- UNITED America, STATES of

vere, when particularly threatened.” Plaintiff-Appellee,

v. VI, pp. Hugh TR VOL. 480-82 PHEASTER, MacLeod Defendant-Appellant. cross-examination, prosecutor read On (the 6) same statement answer to No. America, UNITED STATES of and asked: witness Plaintiff-Appellee, Doctor, correct, Corley Is it that Dr. VI, again? p. could kill TR VOL. v. objection, question

On was with- Angelo INCISO, Defendant-Appellant. Corley’s counsel moved for a mis- drawn. Nos. 75-1004 and 74-3308. trial, was denied. view of the record, we do not believe that whole United States Court Appeals, asking question deprived Corley of this Ninth Circuit. There was no proc- trial. denial of due fair Aug. 19, 1976. ess.

CREDIT FOR JAIL TIME

PENDING APPEAL

Corley, given who was less than the life,

maximum sentence of asserts a consti right to spent

tutional credit the time awaiting trial. There is

jail no such consti right except

tutional in those cases where a jail

defendant’s sentence combined with greater punish than the maximum

time provided by Arizona,

ment law. Hook v. (9th 1974). F.2d 1172 Cir.

THE INSANITY INSTRUCTION judge

The trial instructed the (8 M’Naghten Eng.Rep.

under the rule

(1843)). constitutionally Such is forbid Oregon, Leland v.

den. (1952); Eyman 96 .L.Ed. 1302

Alford, (9th 1969). 448 F.2d 306 Cir.

Affirmed. de Kamp (argued),

John Van Federal Defender, Cal., Angeles, Los for de- Public fendant-appellant 75-1004. (argued), Angeles, Reichmann Los Joe Cal., 74-3308. defendant-appellant appellants and Bonner, Atty. (ar- have found Asst. U. no reversible er- S. C. Robert Accordingly, ror. we Cal., affirm. plaintiff-appel- Angeles, Los gued), lee. I. FACTS disappearance This case arises from the WALLACE, Circuit ELY Before Adell, Larry the 16-year-old son of Palm RENFREW,* Judge. District Judges, and Springs multi-millionaire Robert Adell. At 1, 1974, 9:30 P.M. on approximately June RENFREW, Judge: District left a Larry group high Adell of his school were tried and Inciso Pheaster Appellants in a Palm Springs friends restaurant known District the United States before North. He walked Sambo’s into the of California District Central for the parking lot restaurant with the ex- 12- all counts of a were convicted on pressed meeting intention of a man named One indictment. Count criminal count who was Angelo supposed to deliver a with un- together other charged appellants, pound marijuana. of free Larry never re- whose names co-conspirators indicted turned to his friends the restaurant conspir- with a grand jury, unknown evening, family and his never saw him Larry and hold Adell for kidnap acy to thereafter. 1201(c), Title in violation Section ransom long, agonizing, and ultimately un- remaining United States Code. Larry began successful effort to find short- depos- charged counts eleven ly disappearance. his At after about 2:30 containing letters in the mail both iting 2, 1974, Larry’s on June A.M. father was for ransom for release of requests telephoned by a male caller who told him Four, Two, Six, (Counts Eight, Ten Adell being son was held and that further Twelve) and extortionate threats would be left in Larry’s instructions car in Three, Five, (Counts injure Larry Adell lot of parking Sambo’s North. Those Seven, Eleven), Nine in violation included a instructions demand for a ran- paragraphs, respectively, second first and $400,000 for the Larry. som release of Title Code. States Section regarding delivery Further instructions charged having with aided and Inciso promised were ransom within a charged in Counts Two the offenses abetted week. the caller had warned Mr. Judgments of conviction through Twelve.1 that he would never see Larry again Adell on November entered were notified, police the F.B.I. were if the Mr. and Inciso were each sentenced Pheaster immediately F.B.I., called Adell and on Two years’ imprisonment Counts seventy agency actively involved in the Twelve of the indictment and to through investigation begin- of the case from the One, with the imprisonment on Count life ning. concurrently One to run on Count sentences Numerous difficulties were encountered 70-year imposed terms on Counts ransom, attempting to deliver the neces- through Twelve. Two sitating a number of communications be- this to review jurisdiction of The kidnappers tween the and Mr. Adell. The below rests judgments of conviction from the kidnappers communications in- 1291 and Title Unit- upon Sections a mixture of cluded instructions and appeal, In this Pheaster threats, Code. messages ed States as Larry. as well large number of asserted kidnappers finally and Inciso have Before the broke off 30,1974, below. We have con- by the court on June Adell errors Mr. communications arguments by all of advanced received a total of ten letters from the had sidered * 2(a) Renfrew, provides 1. 18 U.S.C. § B. United follows: “Who- Honorable Charles The against ever commits an offense Judge, Northern District of Cali- States District aids, abets, counsels, commands, States or in- fornia, by sitting designation. commission, procures punishable its duces or principal.” as a II. ERRORS BY ASSERTED typed in a PHEAST- which were nine of kidnappers, ER hand- of which was and one “script” style addition, had re- Mr. Adell In

written. Sufficiency A. of Count One of kidnap- calls from the telephone two ceived the Indictment Appellant argues that his con- tape-recorded by which was one of pers, viction under Count One of the indictment communications, the kid- these F.B.I. reversed, must be because that count fails a total of four gave instructions nappers therefore, to state a federal offense and is ransom, but it to deliver attempts incapable supporting his conviction. Al- reasons, number of for a delivered never though argument was not raised on released. was never Larry Inciso, appeal by appellant would, it if ac- delivery, set for the first The instructions cepted, apply equally to his conviction un- 8th, the late June were nullified der Count One. containing them on the letter delivery of One of the charges Count indictment when, delivery failed 9th. The second June “did willfully knowingly appellants 12th, turning Mr. Adell balked at June combine, conspire, agree confederate and adequate as- money without more over other, together, with each and with other would be released. his son surances co-conspirators whose names are unknown aborted, delivery on June 23d was third Jury to unlawfully kidnap to the Grand kidnappers’ because apparently Adell, Larry Larry hold for ransom the said pick-up being site was awareness having willfully transported Adell been bag containing the A duffel monitored. foreign commerce following interstate money desig- thrown into the ransom in violation of Title kidnapping, never retrieved spot, but it was nated Code, United States Section 1201.” The The fourth and final at- kidnappers. quoted “natural construction” of the lan- 30th, June really began. On tempt never guage urged by charge Pheaster is a instructions, Mr. Adell went to pursuant conspiracy kidnap appel- “the [in pay telephone to await designated hotel allegedly lants arose after involved] but was never contact- instructions further kidnapped Adell had been and trans- were re- No further communications ed. ported (Emphasis in interstate commerce.” despite Mr. kidnappers, ceived from added.) advantage appellants attempt to renew contact mes- Adell’s this construction is that it removes from Angeles Times. in the Los sages published kidnapping involvement in the alleged their appeared When it that further efforts to reference to interstate transportation all kidnappers communicate with the would be victim, necessary element of the sub- futile, the F.B.I. arrested appellants, who 1201(a) offense Section and also stantive time, had been under surveillance for some conspiracy offense in Section 14, 1201(c).2 operation July interpretation, in a coordinated Under the provides: “(4) person foreign 1201 the is a 2. Section official as 1116(b) guest in section or an official defined seizes, “(a) unlawfully confines, Whoever in- title, 1116(c)(4) as defined in section of this decoys, abducts, veigles, kidnaps, or carries away punished by imprisonment for ransom or any holds reward or other- shall be for any person, except in wise the case of a minor years term of or for life. thereof, parent when: “(b) respect (a)(1), above, With to subsection twenty- the failure to release the victim within “(1) person willfully transported is unlawfully hours after he four shall have been foreign commerce; interstate or seized, confined, inveigled, decoyed, kidnaped, “(2) any against person such act is abducted, away or carried shall create a rebut- special done within the maritime and territo- presumption person table that such has been jurisdiction States; rial of the United transported foreign in interstate or commerce. “(c) persons conspire “(3) any against person If two or more such act is to vio- special jurisdiction per- done within aircraft late this section and one or more of such States as any of the United defined in section object do sons overt act to effect the 1958, 101(32) of the Federal Aviation Act of conspiracy, punished by impris- each shall be any (49 1301(32)); as amended U.S.C. or years onment term of or for life.” 360 concerning appellants is he jury’s charge prepared meet,”’ must be

grand and, ‘ kidnap Larry they conspired to simply secondly, “in any proceedings case other Stripped him for ransom. and to hold Adell against taken him for a similar are of- concerning interstate allegation fense, whether the record shows with ac- alleged conspiracy transportation, to what curacy may plead extent he (hypothetical) the earlier kidnap Larry from acquittal former or conviction.” [Cita- ” might constitute a state offense kidnappers 763-764, tions Id. omitted.]’ jurisdictional requisite would lack at 1047. transportation to con- of interstate element Although essentially the same crite it into a federal offense. vert apply charging conspira ria to indictments merits of Pheast- considering Before cies, do certain differences flow from the we argument, appropriate er’s it very conspiracy. nature of crime of Be guide our decision. the standards that state conspiracy gist “the is the cause or Rule 7 of requirement with the begin We charged indictment, crime” in such an Rules of Criminal Procedure Federal Supreme Court has held that “it is not concise plain, an indictment “shall be a allege with necessary precision technical statement of the es- definitive written all the elements essential to the commission constituting offense sential facts object offense which is the challenged Any evaluation of a charged.” conspiracy, object to state such must also take into account the indictment required detail which would be in an indict requirements imposed more fundamental committing ment the substantive of inter- judicial Amendment. The the Sixth Wong States, fense.” Tai v. United 273 requirements provide of those pretations 77, 81, 300, 301, 47 U.S. S.Ct. 71 L.Ed. 545 analysis for our here. the framework (citations (1927) omitted). Rather, challenge sufficiency A to the has held that: Court game indictment is not which the an charging “In such a conspiracy ‘certainty sharpest eye or the clever lawyer with the intent, identify to a common sufficient to argument gain can reversal for his est the offense the defendants con- “ are longer no re client. ‘Convictions commit, is all that is’ spired to neces- of minor and technical defi versed because Ibid., quoting sary.” Goldberg v. United prejudice did not the ac ciencies which States, 211, (8 1921). 277 F. 213 Cir. ” States, v. 369 Russell United U.S. cused.’ Wong Tai the alleged defect 1046, 8 L.Ed.2d S.Ct. was that it was insufficiently indictment States, quoting v. United (1962), Smith times, with respect people, detailed to the 1, 9, (1959). 3 L.Ed.2d 1041 S.Ct. places involved. In this Circuit and must, however, per A criminal indictment elsewhere, courts upon Wong have relied functions which are certain essential form Tai to sustain indictments in which ele- importance protection utmost object ments of the offense have been not Supreme accused of crimes. The persons merely imprecisely completely stated but emphasized performance has that the example omitted. For compromised. Stein these functions not to States, Russell, (9 1962), F.2d 518 1038. In Cir. this Court 369 U.S. at appeal an Supreme pre on its considered from a conviction un- Court drew Russell trafficking 174 for formulating decisions in the criteria der U.S.C. in un- § vious evaluating challenged lawfully imported in a indict conspir- to be used narcotics. The acy allege ment: count of indictment “failed to appellant that the knew that the heroin are, first, had “These criteria whether the in- imported” illegally although been such the elements of the ‘contains dictment charged, necessary was a knowledge intended to be “and suf- element of the offense offense. Although the defendant of what Id. at 519. ficiently apprises substantive

361 be necessary facts could Practice 123, we held that Procedure: Criminal § indictment, we held alter from the implied view, 225-226. In our the same standard allega such an that the omission of natively here, apply where should the challenge conspiracy charge to a was not fatal tion in acquittal came a motion for after all Id. at offense. commit the substantive to evidence had been received. Such a long States, Brown v. United See also 520-521. delay raising the issue suggests a purely denied, (5 1969), 397 cert. F.2d 489 Cir. 403 incorporating tactical motivation of a con 932, (1970) 927, 25 L.Ed.2d 106 90 S.Ct. U.S. ground appeal in venient the event the to al despite failure (indictment sufficient went jury against verdict the defendants. knowledge that heroin by defendant lege Furthermore, delay fact of the tends to imported into the United States been had negate possibility of prejudice in the required law under 21 U.S.C. contrary to preparation defense. The Court of States, F.2d 174); 321 Danielson v. United § for the Seventh Appeals applied Circuit has de (9 1963) (indictment sufficient 441 Cir. stringent standard similar to stated ut forgery mingling elements spite in Kaneshiro cases pretrial where no 495). cf. But tering under 18 U.S.C. § attacking the sufficiency motion of the in States, (10 F.2d 1136 406 Nelson v. United dictment was made. United v. Log States conspiracy (indictment charging 1969) Cir. wood, 905, 360 F.2d (1966). 907 We think securities interstate transport altered a standard is appropriate such here. of fail fatally defective because commerce Although Count inexplicably One accompanied allege the acts were ure falls inexcusably far short of plead- a model as re fraudulent intent unlawful or conspiracy ing offense under Section 2314). by 18 U.S.C. quired § 1201(c), it is well established that an indict- note Finally, we must not be ment need drafted in the most pre- first inadequacy of Count One was asserted possible. cise form The issue before us on the attention of the district brought appeal whether, is under the standards the evidence had been only after all court above, out Count set One is so defective trial. Failure in an extensive received reversal of the convictions under it is, of state an offense indictment an be question must ordered. which can be course, defect a fundamental one, we find not frivolous that reversal is See, any g., e. time. raised mandated. not 885, Clark, (5 888 Cir. 412 F.2d States States, 270 F.2d 1969); Chappell v. United have difficulty rejecting We no However, 1959). very 274, (9 276 Cir. imaginative Pheaster’s rather far judicial system re of our limited resources interpretation of fetched Count One. challenges made at the such be quire that construing language indictment, of an avoid possible moment in order to earliest guided by courts must be common sense although Consequently, waste. needless practicality. United States v. Ander waived, are defects never indictments such son, 1218, (9 1976). 532 F.2d 1222 Cir. challenged liberally are tardily which are kidnapping” interpreta “double Pheaster’s validity. favor of For exam construed in clearly test, One tion Count fails that that when an indict held this Court ple, language when the especially of the disput verdict, it challenged before ment is “ count is read as a ed whole. Absent an necessary ‘the appeal if upheld to be provision explicit incorporation fair con any form appear facts language, charging a conspiracy indict within the terms can found struction ” specification of overt acts ment’s cannot be v. United Kaneshiro the indictment.’ supply allegation used critical 1266, (9 Cir.), cert. States, F.2d 1269 445 completely missing 537, charg element denied, U.S. language. ing United States v. Knox Coal (1971), quoting Hagner v. Unit L.Ed.2d Co., (3 1965), 417, 76 347 F.2d Cir. States, cert. ed denied, Lippi States, (1932). Wright, Federal v. United 382 U.S. See L.Ed. (1965). spiracy. construed, Never- 15 L.Ed.2d 157 So might Count One be appro- conjunction acts is seen theless, to overt as the part reference of an adequate an otherwise common- conspiracy confirm priate charge to with another interpretation allegation an part adequate of of an sense substantive offense charging language. charge, A achieving inadequate thus an hy- is included alleged in a charge the overt act Count brid of reading of non-existent federal crime. concerning Although that the all of the allegation necessary confirms elements One form, could be transportation in interstate found some Larry Adell’s the failure to appellants consistently to adhere either is to be attributed to a conspiracy commerce allegation or to a co-conspirators substantive unnamed and not offense alle- and their gation argued could be defect, whose to be group kidnappers of exist- a fatal to another requiring reversal. sought ence is to be inferred the ad- phrasing Count One. mittedly poor This Having argument, stated the interpretation of Count One eliminates the reject we When objection it. an to an argument on which Pheaster’s foundation made, timely indictment is not the review built. ing court has leeway considerable imply to we are Although necessary allegations convinced Pheast- from the language n Count argument concerning See, One is er’s the indictment. e. g., Kaneshiro v. merit, States, our consideration of the in- supra, without United 445 F.2d at 1268-1269. brought light argu- to another ambiguous dictment has If the language of Count One is is related to one allegation ment which raised read as an Larry Adell was and which we mention for the transported commerce, in interstate the in completeness. The careless draft- sake of dictment is sufficient allega because “the possible argue One makes it to ing of Count tion of acts which would to amount commis allegation conspiracy does not sion of the substantive offense was merely allegation interstate descriptive embrace of the conspiracy.” Reno v. is, transportation States, Adell. That (5 Cir.), F.2d might paraphrased charge denied, One to Count cert. 375 U.S. conspired (1963). to appellants others kid- L.Ed.2d 60 Under the liberal rules to hold him

nap Larry conspired interpretation for which are be applied and, here, importantly, actually he necessary ransom we hold elements transported interstate commerce fol- 1201(c) of a violation Section can be lowing kidnapping pursuant language his con- found in the of Count One.3 difficulty charged sential 3. court had no elements of The district also the crime in Count rejecting interpretation One Pheaster’s was as follows: of Count One, reporter’s transcript First, “Here are essential elements. of the trial persons conspired together that two or more the court’s concern that the in- does indicate alleged unlawfully or about time might Following dictment be defective. an ex- Adell, kidnap Larry transport him in inter- colloquy tended between court and counsel state commerce and hold him for ransom. concerning acquittal Pheaster’s motion un- “The second element: That the defendant One, following the court der stated Count question willfully became a member of the interpretation of Count One: conspiracy. said charges conspiracy between both de- “This pursuant “THIRD: That to the said con- fendants, kidnapping followed spiracy, Larry kidnapped Adell was in fact transportation pursuant lines across state transported and was in fact in interstate conspiracy.” p. Vol. the said R.T. following kidnapping; commerce interpretation apparently carried for- This conspirators That “FOURTH: one of the ward into instructions. knowingly committed at least one of the clearly charged court that the defendants were charged in overt acts the indictment at or conspiracy violate 18 on trial U.S.C. place alleged; about the time and provided 1201(c), 1201(a) as § in 18 U.S.C. it § knowing- “FIFTH: That such overt act was did include an element which would not other- ly object done in furtherance of some conspiracy charge. wise be included purpose conspiracy charged.” of R.T. concerning instruction district court’s the es- 12, p. added). (emphasis Vol. their any conviction in subsequent prosecu- that indict- to the functions Referring language speaks tion. The of Count One justice criminal in our must serve ments conspiracy, of and the terms count itself is One, its despite we find that Count system, captioned by a reference to the conspiracy functions those served defects, adequately 1201(c). provision in U.S.C. Kaneshiro § ei- not claimed has case. Pheaster this States, supra, 445 v. United F.2d us or before court the district before ther any One has Count language of the that can be Because Count One read to include of his de- preparation the prejudiced way allegation conspiracy an to commit all made, the been had such a claim If fense. the elements of the of substantive offense it. tend to belie case would of this 1201(a), facts and specified in because there has § by unusually represented no that the suggestion defective draft- been counsel;4 yet, experienced competent ing any charges confusion as to caused the only came indictment challenge to the met, had we find the that to be that Count One trial, the evidence after all the is of sufficient to support the end the indictment of co-defend- Pheaster’s received. been in this case. the convictions had under Count Inciso, also convicted ant, B. Compliance Miranda inadequacy in its not asserted but has

One Requirements argument bordered Pheaster’s appeal. extremely on an formalistic, relying the the Pheaster contends district court of language of the interpretation strained refusing suppress to erred certain incrim- although fatally a de- Finally, One. Count inating by following statements made him by re- be saved cannot indictment tangible fective his arrest and certain evidence that, if instructions, we note jury medial seized as a direct found and result of those in this case jury the instructions pre-trial anything, sup- In his motion to statements. appel- benefit of to the press, grounds considerable Pheaster advanced two for worked first, has been made to Similarly, claim the suppression: no statements were lants. appeal the a involuntarily physical or on made result of district court the arresting One would threats F.B.I. of Count abuse and drafting defective second, arresting ability plead agents, to impair appellants’ way any charge court’s instructions necessary in the third element of all The required Count One ele- jury find that two critical ele- conspiracy conviction, including ments of a were in fact * * offense of substantive ments committed, appellants allegation “conspired that the necessary finding not for a that is transport him in interstate commerce However, immediately conspiracy conviction. * * Perhaps because an abundance of enumerating of the five elements after poor arising phrasing from the caution charged, court stated the fol- the district crime One, the district court Count also instructed necessary findings lowing summary of the jury important to find two that it had of the defendants, omitting any this time convict offense, although elements of the substantive kidnap- requirement of an actual to a reference charged that offense was in the indictment. transportation ping in interstate com- were erroneous instructions because merce: of elements of the beyond combination substantive you a reasonable doubt “If find conspiracy charged conspiracy placed The instructions offenses. existence proved and that government indictment has been on the than was heavier burden conspiracy during one of existence however, proper; since the defendants were knowingly alleged acts done the overt standard, they this heavier convicted under conspirators in furtherance of the one of complaint. no The error could have cause conspiracy, purposes object then therefore, only favor and work in their complete conspiracy proof and it harmless. you every person complete found as to willfully conspir- note that member of the 4. We must defense counsel been have committed, Pheaster, point, acy the overt act was at the time was at the time who raises conspirators regardless did Public Defender for the of the trial the Federal 12, pp. act.” R.T. Vol. 1794-1795 the overt of California and is now the District Central added). (emphasis Attorney Angeles. for Los He is a District instructions district court’s lawyer. highly accomplished criminal language judge read the trial indicate “were procedures volunteered comply and not failed to the result agents any in Miran by Supreme interrogation.” custodial the Ibid. enunciated 1602, 16 436, 86 Arizona, 384 U.S. da issue only The here is the correctness of alleged violation (1966). The L.Ed.2d ruling the district court’s alleged the was Miranda rights under Pheaster’s noncompliance by the agents F.B.I. alleged failure combining an compounded, requirements the of Miranda. Specifically, warnings required by any of the give argues that warning Pheaster the by found to re alleged failure with an decision that district court to have given been was .the assertion of independent Pheaster’s spect inadequate Miranda, under and that the present during his have counsel his desire agents respect F.B.I. failed to rights his interrogation. by under Miranda continuing to interrogate suppression mo- pretrial hearing A on the after he stated him that he wanted to see several which Pheaster and attorney. held at an tion was gave extensive tes- arresting agents A summary brief the circumstances of concerning the circumstances timony Pheaster’s arrest and his making of the making his arrest and Pheaster’s subsequent statements will suffice to frame Pheaster claimed subsequent statements. the issues now before us. Because the dis- that, being given warnings than rather holding court’s trict that Pheaster was not Miranda, he had instead been by required physically abused threatened is not chal- rights he had no until the kid- told that lenged appeal, on this we excise those alle- safely released. He fur- napped boy gations from the following account. Short- physically claimed that he had been ther ly July after P.M. on four F.B.I. abused, the use of both blows agents went to apartment Pheaster’s to ar- handcuffs, tight his intentionally and that him, having previously rest secured an ar- repeatedly threatened. had been life warrant. rest Pheaster was arrested in agents apartment F.B.I. front of the building. who arrested Pheaster Even as story, testifying that he had been agents struggled his him, denied to restrain Miranda, rights stated, under of his advised Pheaster “I want an attorney right against directed him had only p. force R.T. Vol. agents now.” 179. The necessary the minimum amount to re- been identified themselves and informed Pheast- arrest, of his him at the moment strain er that he was under arrest for extortion in against no had been made his threats connection with the kidnapping of Larry life. Adell. After his hands were handcuffed back, behind his Pheaster was taken back Pheaster’s statements were held to be apartment into his and seated on the couch. resolving In admissible. conflict of tes- thereafter, Shortly formally he was given timony, the district court chose to believe warning Miranda his one of agents, agents. rejected F.B.I. The court who, suppression hearing, summa- contention he had made Pheaster’s warning rized the as follows: involuntarily, finding that there statements “I told him that he right had a to remain coercion, abuse, “no been no no over- had silent; not, if he did spoke, it will.” coming of the defendant’s R.T. Vol. against could be used him. I told him he rejected The court also Pheaster’s p. 236. counsel, entitled to and if he could that he had contention been denied his one, the not afford Government would Miranda, finding under that warn- rights him p. furnish one.” R.T. Vol. “adequate were which and sufficient ings given agent the circumstances” had been admitted that nothing under he said right that “the defendant’s conduct consti- about his Pheaster to have an attor- rights of which he ney present during a waiver of the interrogation. He tute[d] prior and which he had knowl- was advised further testified that as the warning was edge ground, being of.” Ibid. As an alternative given, interrupted Pheaster to state statements rights the court held Pheaster’s that he knew his repeat and to his inter- in Las Despite Vegas, agents and the lawyer. telephoned to see demand warning summarized above to commence an ruption, investigation F.B.I. told was then completed. addition, Pheaster agents there. received re- appointed an provided he would be headquarters back from F.B.I. ports he was taken before attorney when relayed to they attempt Pheaster in an booking county following his magistrate verify story. Telephones were used be- arrange- while delay After a short jail. security cause concern that a breach of young for the care of his made ments might result from a radio transmission. apart- from his son, taken Pheaster evening Throughout amplified transporta- car for waiting F.B.I. to a ment amended story. his Because of his resist- county jail. to tion The F.B.I. car was diverted from its route necessary to use some force to ance, it was county jail when Pheaster to the said that the car. get him into agents he would show the where he had Pheaster occurred in questioning No disposed typewriter he had used to car, agent in the apartment. Once type the ransom notes. After the car start- engaged the arrest charge was who Long Bay, ed toward Beach where Pheaster “one-way a “firm” conversa- Pheaster typewriter, claimed to have thrown the he primari- consisted This conversation tion”. story his changed type- stated that the against evidence a recitation ly of in a storage writer was locker in a laundry sev- Pheaster, although Pheaster was asked his apartment room behind and that Larry knew where whether he times eral get it. The agents agents could then drove Approximately fif- being held. was Adell apartment back to Pheaster’s where he led trip after to twenty minutes to teen to the locker he had described. them When Pheaster was told that jail began, county open, was forced a portable type- the locker ninth note from found on the fingerprint writer, pistol, a .22 caliber automatic identi- positively had been kidnappers knapsack, and a towel were found. Later information, that Upon hearing as his. fied night, A.M., at approximately that “something to he had that stated Pheaster parked transferred to another agents car sup- to kidnapping began with the do” Edgewater Hyatt, because the first car scheme, kidnapping his about the details ply gas almost out of and no service was sta- confederates, location of and the open. tions were Pheaster was booked at agent charge of the arrest Adell. Angeles County approxi- the Los Jail at that, admitted “Once testified [Pheaster] July 15,1974, 3 A.M. on mately almost nine stop, at the first he which was implication, his after arrest.5 hours amenable cooperative, generally in a approxi- At p. Vol. 161. R.T. mood.” Adequacy 1. The of the Miranda Warn- again asked mately 6:45 P.M. ing rights his and was was aware of if he question adequacy speak to he not have to that did reminded warning Miranda to Pheaster after his he his replied He that knew agents. us long. need not detain Pheaster’s arrest had “had such a small that he rights, but upon here is based the admitted argument want, know, you help you I that in this part agent F.B.I. to failure of the inform him 214-215. pp. R.T. Vol. boy back.” get right government- that his to a specifically way made on the stops A number appointed attorney, about which he was jail so that the information county informed, right included the to have also relayed could be by Pheaster supplied during his attorney present interroga telephone. At one headquarters by F.B.I. whether, need not decide boy tion. We Pheaster indicated point unusually long began recognize going county this is an after the car toward the We booking, put any partic- there jail. arrest and but interval between did not Pheaster’s counsel began cooperate dispute delay that Pheaster emphasis booking. no on the overall ular agents approximately fifteen minutes with the In United States v. Hodge, an otherwise F.2d 945 abstract, this omission ,6 (5 1973), the Appeals a fatal Cir. Court of warning is Miranda complete flaw Fifth Circuit held that a confession clear that Pheaster obtain abundantly it is because circumstances right. remarkably ed under similar aware of completely to those in the instant case was admissible. in Miranda Su- recognize We having been given After arrested and ade cir- amount of held preme “[n]o quate warnings rights, of his Hodge re may person evidence cumstantial have an quested attorney. response right to have an aware been [his have request, investigating agent to that will interrogation] during attorney present the interview” proceeded “terminated the warn- stead to stand [of suffice [the] explain charges “the and evidence” 471-472, at 1626. ing].” 384 U.S. Hodge. against 487 F.2d at 946. Appar holding would Thus, Supreme Court’s by the ently prompted evidence already in finding that Pheaster had us from preclude hands, Hodge the Government’s then simply because right of his knowledge prior changed his mind and volunteered to make history of involve- almost continuous of his waiving After right a statement. justice system. criminal ment counsel, Hodge made a confession which however, rely upon not circum- Here, we do subsequently introduced was at trial. On evidence, evi- there is direct stantial Hodge appeal, urged the court to hold that that he own mouth from Pheaster’s dence right “once an accused has invoked his to agent was right. As the aware his was attorney present, an all questioning have rights, Miranda informing of his him discussion for whatever purpose and must insisting that he interrupted, cease until an attorney is obtained for the repeating his earlier rights his and knew affirming Hodge’s accused.” Ibid. In con immediately. attorney an to see demand viction, rejected the court his literal inter disputed hold on these facts To Miranda, pretation holding instead that because of the suppressed evidence must be can change arrestee his mind after “[a]n warning in the Miranda alleged defect requesting attorney” long an so as the warning to a ritual be to convert a would change “voluntarily of mind is freely and, hackneyed of a in the truest sense made”. Id. at 947. In so holding, the court form over substance. expression, to exalt distinguished United Crisp, States v. 435 say, we decline to do so. to Needless (7 1970), denied, F.2d 354 Cir. cert. 402 U.S. 947, 1640, (1971) (a 91 29 L.Ed.2d 116 S.Ct. Rights the Miranda 2. Waiver of upon by Hodge), relied case because in that case, subjected police “the the defendant to question next and more difficult The questioning immediately intensive follow Pheaster’s statements is whether decision ing a to answer.” 487 refusal F.2d at 947 attorney to see an he demanded made after added). (emphasis provided was one are admissi- before he but upon is built position key Pheaster’s This distinction questioning ble. between language suspect in Miranda: “If the following presenting the evidence attorney, wants an against states that he him was individual available also central to Davis, interrogation must cease until an attor- (9 v. 527 F.2d United States 474, Cir., 1975), 86 S.Ct. 1628. ney present.” U.S. a recent decision of this Court argues by agreeing involving to rights Government a waiver of Miranda in a arresting agents F.B.I. on the different, related, talk to the closely context. county jail, Pheaster waived his way to Davis a confession obtained almost immedi- rights ately suspect under Miranda. after a had been advised of Adams, (7 1973); 484 F.2d We note that decisions from other circuits 361-362 Cir. 6. Rhay, (9 in the context of an otherwise but cf. Smith v. 419 F.2d have held that Cir. complete warning, 1969), Miranda this omission is not where the defendant was also not told Floyd, attorney, United States v. 496 F.2d if he could not afford an one a fatal flaw. (2 1974); represent appointed United States v. him. 988-989 Cir. would be reaching any a desire had indicated rights and kind.” At (empha- his added; held admissible. sis to be silent bracketed material origi- remain an nal). not to talk to indicating his desire After was shown agent, Davis

investigating F.B.I. Supreme Mosley Court in expressly photograph of himself surveillance a bank any disavowed intention to discuss the ef- robbery asked participating suspect’s request fect for an attorney. his posi- he wanted reconsider whether at 101 n. However, 423 U.S. S.Ct. examining Davis picture, After tion. we find instructive the Court’s treatment of me”, and said, you’ve got “Well, guess I question: related closely effect of a rights his sign a waiver proceeded indication suspect’s that he desires to re- rejected Davis’ This Court Miranda. under In Mosley main rejected silent.7 Court improp- contention that his confession interpretation Miranda, holding a literal evidence, citing the into admitted erly right exercise of the to remain Court Supreme recent decision preclude not silent does all ques- further 96, 96 Michigan Mosley, Rather, in tioning. the context par- general (1975), for the 46 L.Ed.2d 313 Mosley, facts of the Court ticular held that right talk or remain “the proposition made a confession two hours after Mosley defendant’s, no mechanical silent had indicated desire to remain silent prevent Miranda should application was admissible. The initial interrogation informed, exercise of voluntary and free Mosley had been terminated when indicated Turning to F.2d at 1111. right.” 527 to talk. that he did want Two hours case, this of the Davis particular facts later, giving after a new warning, Miranda properly confession held that the questioned him another officer about a dif- admitted: being After ferent crime. informed of evi- “Here, asked Davis if agent merely the crime, implicating him in the dence second his decision to wanted to reconsider he incriminating an made statement Mosley silent, the picture; in view of the remain subsequently introduced at his which was not until after did resume questioning Although the Mos- specific holding in trial. it voluntarily agreed that had Davis precedent the resolution ley is not direct Jackson, 39, 436 F.2d U. S. v. should [see indicate both a Mosley does appeal, of this 1970), denied, 403 (9th cert. 40-41 Cir. in recognition procedure that the set out 2209, L.Ed.2d 906 29 S.Ct. U.S. 682] [91 language the as clear as of is not Miranda has met its (1971)]. The Government might suggest and a willing- opinion that heavy showing of that Davis’s burden greater degree a of flexibili- import ness to rights his to remain silent waiver of varying of Miranda to ty application in the confessed, counsel, he signed before to factual situations. knowingly intelligently. was made have concluded that a waiver We any psychological is evidence of There no Davis, rights despite under Miranda can occur on or of over- of physical pressure operates interrogation questions on the the discussion of both individual to In Miranda 7. producing paragraph very appears free choice in a in the same and in statement overcome similarity language. privilege Because of the in has been once invoked. If after the similar quotation justified: attorney, phrasing, is states that he wants an extended the an individual interrogation attorney must cease until an the warnings given, the have been subse- “Once * * * present. is procedure quent clear. is If the individual indi- “ * * * they If authorities conclude that manner, any prior any at in time to or cates during provide counsel reasonable will not questioning, during to he wishes remain investigation period in time which in the silent, interrogation of must cease. At this out, they may doing refrain from field is carried to point he he intends exercise has shown violating person’s Fifth Amend any so without privilege; statement Fifth Amendment his they long question privilege do so not person privilege ment his invokes after taken 473-474, during 384 U.S. at compul- that time.” 86 product him than of be other cannot added; (emphasis right 1627 footnote omit sion, S.Ct. at Without or otherwise. subtle in-custody ted). setting questioning, of off cut press. Hilliker, United attorney. States v. have an F.2d demand earlier an terse, (9 Cir.), denied, we cert. U.S. Hodge decision (1971); deci- 28 L.Ed.2d 242 see also reached in that the result believe Vigo, (2 487 F.2d willingness to States with the consistent sion 1973) (statement after defective Miran and Cir. degree flexibility greater import volunteered). warning held to be Al Miranda, da which application of in the realism question though specifically is not ad in decision recently been evidenced has Mosley, the recitation of the dressed Mosley and the Supreme Court implied, indicates an rather than an facts in Davis.8 The this Court decision waiver express, by Mosley. course, Government, “heavy bur- bears * * * 321. We think that this is a case in S.Ct. the de- to demonstrate den implied. waiver can be It is critical intelligently waived knowingly fendant agreed on the fact that Pheaster to focus self-incrimination and privilege against his cooperate agents after he had been appointed counsel.” right to retained or his min only twenty car for fifteen to in the 475, 86 Miranda, supra, 384 U.S. at challenged not in his point utes —a brief. Thus, although he was in the car for a longer cooperation examination of the record his was not the period, Our lengthy this case has revealed that decision incommunicado detention. result one; yet, waiver was a close is not a case in which there was an regarding This balance, delay attorney the district court providing intentional an we believe that the deciding hope suspect yield the Govern would was correct “heavy burden” in estab and recant his demand for an at pressure had met its ment torney. important Pheaster’s waiver. Because it was It is also to note that lishing agents for the F.B.I. who ar statements came as a result of possible Pheaster’s provide objective, presentation him an undistorted an rested him, against particu the moment that he demanded extensive evidence attorney at one, key question larly positive is whether the failure identification of his fin during to sit mute the ride to on the ninth note.9 agents gerprint Hodge As in Davis, jail, attorney questioning really where an could be county did not exclusion of Pheast begin clearly mandates the until Pheaster had indicated provided, particular willingness facts of to cooperate. Finally, er’s statements. On case, convinced that such exclu early evening we are Pheaster was reminded in the this not mandated. This conclusion he did not have to agents, was that talk to the sion significantly easier had been he continued to talk would have but because of express rights expressed an waiver of desire help Larry them find there been such a waiver is not determi Adell. Under all the this absence circumstances of ap case, in native, this Court has held we conclude that waiver of the Miran rights, a waiver of Miran including circumstances da the earlier demand to propriate ex- rights implied attorney, can be rather than an properly see found. da recognize Although that a demand to see interrogation begun we elusion had not is con- attorney may different considera- involve an analysis Hodge sistent with and Davis. indication of desire to remain tions from an argued In the instant case it could be that there silent, possible waiver is we believe that interrogation. was an element of The F.B.I. situation. either agent charge of Pheaster’s arrest testified that, safety because of his concern for the holding grounds for the district court’s 9. One of victim, kidnap approxi- he did Pheaster ask were admissible that Pheaster’s statements mately Larry three times where Adell was be- finding statements were vol- ing kept. In the context of this case and in interro- and not the result of custodial unteered justifiable light agent’s concern for the gation. be no doubt that Pheaster There can Adell, safety ques- we find that these statements, custody at the time of his so inwas tions were reasonable and did not rise to the finding key word in the district court’s interrogation proscribed by Miranda. level text, “interrogation”. As the con- stated

369 Voice Constitutionality identification, out-of-court C. with the dele- ‘irreparable’ Identification tion of it serves equally well as a standard for the admissibility of appeal by raised on the issues Another testimony concerning the out-of-court the district court’s failure is Pheaster identification It itself. is the likelihood of Officer John W. testimony exclude of misidentification which violates a de- tape-recorded identified the Turley who right fendant’s process, due and it is kidnappers as that of of one of voice this which was the basis of the exclusion argues that the circum- Pheaster. Suggestive evidence Foster. con- identification of the pretrial stances disapproved frontations are because they recording by Turley Officer were so same increase the likelihood of misidentifica- suggestive” require as to “impermissibly tion, unnecessarily suggestive ones testimony the exclusion of the at trial. On are condemned for the further reason 2, 1974, agent asked an F.B.I. Officer July the increased chance of misidentifi- he knew Pheaster Turley whether gratuitous. cation is But as Stovall identify Upon his voice. he could whether clear, makes the admission of evidence of answers, the agent receiving affirmative showup without more does not violate Turley tape-recorded Officer played 198, process.” 409 due U.S. 93 S.Ct. at between Mr. Adell conversation telephone omitted). (footnote Turley kidnappers. Officer one of the In seek- caller as Pheaster. identified possibility “irreparable Because the mis- identification, agent mentioned ing this great identification” when the identifi- no other record- played names and no other tape-recording cation is from a as when it is Turley. to Officer ed voices photograph line-up, from a or a we hold process protection same due should pretrial proce identification apply to either method. unusual, challenged appeal on this dure involving auditory an rather than a visual No litmus test is paper available to we of a defendant. identification adequacy evaluate the constitutional in not been directed to other cases have procedures any partic identification used in circumstances, volving similar the standards Rather, as ular case. stated the Su apply we must are nonetheless clear. Neil, question Court in the “central preme Biggers, v. In Neil U.S. S.Ct. ‘totality whether under of the cir [is] (1972), Supreme L.Ed.2d 401 cumstances’ identification was reliable synthesized previous its decisions in though procedure the confrontation even suggestive proce identification volving suggestive.” 409 S.Ct. Although Neil and the other cases is, dures. essence, the test at 382. This used only therein involved visual iden discussed evaluating challenges to iden Court in tifications, following quotation procedures. tification United States suggestive clearly Neil indicates that identi Baxter, (9 1973), 492 F.2d 150 Cir. cert. procedures fungible: are fication denied, 416 U.S. general guidelines emerge (1974). from Supreme “Some L.Ed.2d 292 The Court as to the relationship these cases between decision in Neil and our decision in Baxter suggestiveness and misidentification. It of factors to be con enumerate a number all, is, apparent that the primary evaluating “totality first sidered in the very to be avoided is ‘a Bax specific evil substantial circumstances” of a case. In irreparable gave likelihood of misidentifica- ter this Court careful consideration to States, v. United proper analysis photographic tion.’ Simmons of a iden the U.S. ^[377] at 384 [88 S.Ct. ^[967] at tification procedure claimed to be improper phrase ly suggestive. While the was co- the Although L.Ed.2d not all of fac 1247]. apply the determining as a standard for mentioned Baxter iden ined tors voice, tape-recorded gen in-court identification would of a the whether an tification suggestive wake approach policy in the and the considerations admissible eral establish- exists same. Baxter essentially suspect the either when the is not in are analysis, part the first two-part custody or when the law enforcement es broad offi- photo- for the necessity the on cials need determine focusing quickly “to whether the on the and second graphic they identification right on the track.” 492 F.2d at [are] surrounding the circumstances particular The case clearly facts of the instant F.2d at 171. necessity identification. reveal the a voice identifica- procedure. speaker tape tion The on the particular the use of a necessity for recording kidnappers was one of the and is a function of the procedure identification the victim presumably knew where was be- facing the law problem law enforcement ing held. was not in custody. case. As authorities each enforcement obviously suspected he was of be- necessity for particular legitimate the ing in the confirmation of plot, involved acute, grows, procedure more identification that all involvement was critical so availa- the courts to the willingness of tolerate the most efficiently ble resources could be used increases. The decision of procedure also the rescue effort to Adell. Denno, Court Stovall v. Supreme the 1967, 18 293, 87 S.Ct. L.Ed.2d 1199 U.S. Having there determined that was abun- unusually graphic an exam- (1967),provides a voice necessity dant for the use of identi- relationship. The ple of this circumstances procedure, fication we turn our attention to in that identification case were dra- two-part analysis part second man, suspect, a black was dis- matic. The Baxter, established an examination of to the in manacles victim of played of the identification. circumstances lay hospital as she near death in a crime First, we determine whether the must iden- that the Emphasizing constitutionali- bed. or, suggestive tification here was procedure procedure ty depended the identification Baxter, phrased as we it in whether the “totality of the sur- upon the circumstances law enforcement “conduct of the officials” identification, rounding” the held Court on a single to “focus attention sus- tended had been procedure “imperative” that the case, at 172. In the pect.” 492 F.2d instant was constitutional. The ex- and pretrial exposure Turley’s Officer its decision as follows: plained undeniably recording suggestive. tape “ asking Turley Officer whether he only person By world knew was the ‘Here voice, identify his Pheaster and could possibly who could exonerate Stovall. the risk of words, words, investigating agent implant- “He is ran only and her Her ing the the voice suggestion that was in have resulted in free- man” could not the Certainly prefera- hospital fact that of Pheaster. dom Stovall. procedure have been to ask Offi- jail. ble would courthouse far distant Turley identify could long cer whether he how Mrs. Behrendt No one knew naming tape without Pheaster. with the voice responsibility Faced might live. However, is not attacker, the issue before us whether the need identifying available, procedure knowl- a better action for immediate used, under procedure all the Behrendt not visit whether edge that Mrs. could circumstances, constitutionally defec- only followed the feasi- jail police concluded that it took tive. We have was not. Stovall to the procedure ble these Under circumstanc- hospital room. Baxter, length we identified “the es, station police line-up, usual conditions in which time the wit- had, argues he should have now Stovall major the defendant” as a ness observed ” question.’ was out of of a challenged assessment factor 1972; quoting great 492 F.2d at 172. The identification. Denno, (2 355 F.2d Cir. States suggestive identification danger proce- of 1966). memory is that the may dures witness necessity manipulated image stated so that the mental In this Court Baxter typically procedure identification the identification photographic derived from for tape. witness’s on from the the that derived Officer supplants Turley testified that danger especially This is experience. his own in-court identification the tape-re- of memory fragile fleeting with the was great corded voice based upon indepen- his recognized, have victim. Courts crime acquaintance dent of Pheaster and not carried however, crimes are not often pretrial the upon identification. Although for observation. under ideal conditions out we do not endorse in all cases the identifica- 188, 93 Neil, supra, 409 U.S. example, in procedure here, For used tion we do not believe Supreme the 34 L.Ed.2d the that under attendant circumstances “show-up” in one-person process held that due rights Court Pheaster’s were violated by a was viewed alone which the defendant as a result of it.10 process not a denial of due victim was rape D. Constitutionality of the procedure suggestiveness despite the Handwriting Exemplars the months between lapse and a of seven identification. The Su first rape and the argues Pheaster somewhat obser that the victim’s preme found method of obtaining unorthodox and utiliz period attacker over a vation of her ing exemplars his handwriting violated artifi thirty minutes in dim approximately right against Amendment his Fifth self-in adequate moonlight was an light and cial agent crimination. who obtained the identification positive for her basis handwriting exemplars from Pheaster testi defendant. practice normal for fied obtaining exemplars is to suspect such have the copy misidenti Despite potential for placed from materials him. before case, we are in the instant fication inherent case, the agent instant dictated materi Turley’s Officer identifica convinced al that Pheaster to write. The reason com reliable. When was nevertheless tion procedure that this modified was followed reliability as Neil the to cases such pared quite clear. The notes the kidnap obvious. identification is Turley’s Officer included a number rather pers unusual memory of a involving is not a This case mistakes, spelling and the material dictated emo on one observation under victim based included Pheaster those words. fact Officer circumstances. tionally charged spelling that a number the same mis he Pheast Turley testified that had known appeared takes both in the notes and in the period years had had er for a of fifteen exemplars Fur introduced into evidence at numerous conversations with him. A thermore, analysis the trial. conventional was also Turley spoken Officer had performed compare handwriting a month his approximately before on sources, voice kidnapper’s expert first identification the two the Government analogizes photographs Fowler, night his 10. Pheaster case to taken Fowler, (9 1971), 439 F.2d photographs States v. 133 Cir. his No other arrest. dis- “pretrial photographic we that a held played. The salesman indicated that the man procedure impermissibly identification was so pictured bought was the one who had the car give suggestive rise to a likeli- as to substantial at name of Ellis.” Id. 133-134. irreparable similarities, hood of Id. at misidentification.” Despite superficial some we do not marijuana prosecution smuggling for In a 133. persuasive authority think that Fowler border, the defendant’s defense was across suspect the instant case. Because had al- the car across that he had driven the border arrested, Fowler, ready been the instant unlike knowing to a man named Ellis a favor without case, suspect “not a case where marijuana was hidden in Hav- that the the car. large photographic still at and a identification ing purchased car had been established only mandatory was not but a matter of some days before, Angeles police in Los several urgency.” Id. at 134. In Baxter this Court investigation following their continued Fowler, per exclusionary se rule of limited the manner: holding apply that it did where witness “ having placed testify pretrial as to identification arrested Fowler and ‘did not “After investigating amply custody, the officers ulti- the facts demonstrated an and where him independent mately the used car lot the car basis identifica- went to where in-court ” Fowler, They quoting supra, purchased. spoke been tion.’ F.2d had Valencio, salesman, him two showed 439 F.2d car 372 handwriting on The argued admitted distinction testify is to only be

could kidnappers appeared important, because the use of the note from handwrit- posi- was unable to state ing exemplar spelling He show disguised. mistakes re- kidnappers from the quires give the note the defendant tively that evidence which by product Pheaster. is “the of his mind written and intellectual way, a processes.” Used such the hand- acknowledges taking Pheaster writing exemplar pass is said to handwriting exemp- use of subsequent of an “identifying realm characteristic” to purposes does not vio- identification lars protected of a “communication” protection Amendment’s late the Fifth Fifth Amendment. In advancing argu- In v. Gilbert against self-incrimination. ment, emphasizes that spelling Pheaster is a California, 87 18 388 S.Ct. U.S. acquired by learning. skill (1967), the Supreme L.Ed.2d view, Pheaster our has succeeded in through the follow- this conclusion reached a identifying distinction without a differ- reasoning: ing spelling, penmanship acquired ence. Like is taking exemplars “First. The by learning. The manner spelling of petitioner’s Fifth Amend- did not violate “identifying is less an word no characteris- against self-incrimination. privilege ment crossing than the manner of a “t” tic” or only compulsion reaches privilege “o”. looping may identify an All tend to communications, whatever ‘an accused’s writing defendant as author of a with- take, they might compul- and the form involving message out the content or are responses which also commu- sion protected what written. No communica- nications, example, compliance with a tion is involved. subpoena produce papers,’ one’s suspect or ‘compulsion makes Admissibility of Evidence E. Seized the source of “real or physical accused During the Search of . . . .’ Schmerber v. evidence” Apartment Pheaster’s California, 763-764 State U.S. apartment the search of his 1826, 1833, 16 S.Ct. L.Ed.2d [86 908]. pursuant was conducted to a search war- are, handwriting voice and One’s rant, Pheaster moved before trial to sup- course, means of communication. It tangible certain evidence seized dur- press follows, however, that every no means this appeal, that search. On he now ing of an accused to use his voice compulsion challenges the district court’s denial of that compels a communication within or write argument The first advanced motion. A mere privilege. cover of the hand- the search warrant was is that Pheaster writing in contrast to the con- exemplar, probable of an absence of invalid because written, like the voice or tent of what is specified believe that items cause to itself, identifying physical an body argues also premises. on the Pheaster protection. its characteristic outside that, assuming probable cause did ex- even Wade, U.S., supra, at United States warrant, of the search ist for the issuance 1929-1930, [1926], S.Ct. 222-223 [87 during the search the items seized some of 1149], that the L.Ed.2d No claim is made subsequently introduced at trial were exemplars was testimonial content warrant beyond scope and not Boyd v. communicative matter. Cf. recognized exceptions any within States, 116 U.S. [6 searches general rule that warrantless 266-267, 29 L.Ed. 746].” per se unreasonable. are S.Ct. at We find Pheaster’s contention argues that the instant case is no probable there was cause for the distinguishable from in that Gilbert his apartment totally case to be uncon handwriting exemplar in the instant search undeserving of extended dis vincing mistakes spelling used to show similar specified The items in the search writing characteristics. cussion. rather than similar

373 plain things of that a view” exception. types Coolidge were the warrant v. New kidnap- Hampshire, in a person participated who had 403 U.S. 29 plot might possess. (1971); Quigg L.Ed.2d 564 Estelle, in an extortion ping and 492 (9 Cir.), denied, F.2d strong reason to believe 343 cert. very F.B.I. had kidnap- (1974). in the L.Ed.2d 78 Pheaster was involved It is true that no one of Adell. ping F. Admissibility of Evidence Seized out an affidavit to could swear F.B.I. during of the Search Pheaster’s had seen the listed they the effect Automobile but that ina- apartment, in Pheaster’s items prob- the existence of bility negate does not challenges Pheaster also the introduction apart- of Pheaster’s The search cause. tangible able of certain evidence which was the Fourth ment did violate Amend- during not obtained a warrantless search of his against “unreasonable” protection shortly ment’s automobile after he was arrested. We do not read the arrested, searches and seizures. After Pheaster was his car was in United States v. this Court driven to an F.B.I. garage decision where it was 1972), (9 Cir. a decision Bailey, carefully F.2d 408 searched both inside and out. Our Pheaster, to mandate review of the upon by relied record has not heavily any revealed Rather, on part the recent error a different conclusion. district court. in United States v. decision The law governing warrantless (9 1976), repre- Cir. 532 F.2d 132 Spearman, searches of automobiles has been carefully proper, to be the what we believe sents considered in the recent decision of this question to the approach common-sense McClain, Court in United States v. 531 F.2d for the issuance of a search probable cause (9 Cir., 1976), and need not repeated be no better We can do than to warrant. Essentially, here. there must probable be Spearman: quote cause search and exigent circum recognize probable cause “We justifying stances the failure to obtain a person guilty of a crime does believe view, warrant. In our both of these condi probable always constitute cause to tions satisfied in the instant case. any property belonging to him. search argument Pheaster’s there However, upheld many searches we have probable was no cause for the search of his where car borders on the frivolous. The F.B.I. the items to be ‘the nexus between had substantial showing evidence Pheast to be place and the searched seized er’s involvement in kidnapping of Larry . rested not on direct observation Adell. driven Pheaster had the car on a crime, the nature type but on the number of during period occasions after items, the extent missing arrest, the abduction and before his and it concealment, suspect’s opportunity been vicinity had seen of two of the as to and normal inferences where a designated drop Clothing sites. or equip likely to hide stolen criminal would be kidnappers ment used or their fin property.’ might gerprints have been car. Fur Lucarz, 430 F.2d United States v. thermore, Pheaster been plac had observed (citations (9th 1970) omitted).” Cir. ing a ease carrying trunk of the car. 532 F.2d at 133. He had obtained the case from a woman Having search warrant considered with whom he had had a conversation transcript testimony apparently and the related to his efforts agents who conducted the search of money. F.B.I. to obtain the ransom There was reject probable apartment, we also Pheaster’s abundant cause search the car argument. second All items chal- for that case and for other also evidence were either lenged by relating kidnapping encom- which might plausibly within the items described in the in the car. passed found pursuant supra. v. Spearman, warrant or search seized States pie argument suggests right that the Pheaster’s to search exigent justified under probable cannot be cause and the reasonableness search exception is also without car under seizing exigent circumstances circum- parked public on a The car merit. are foreclosed if a warrant was stances persons to easily accessible street at the practicable obtained first mo- not lo the car or evidence might remove who Exigent ment. circumstances with re- not know the F.B.I. did in it. The cated are not gard to vehicles limited to situa- parties kidnap to the all of the identities probable cause is tions where unforesee- arrest had prior to Pheaster’s plot but ping only at and arises the time of ar- able being was not Larry that Adell determined 595, rest.” Id. at 94 S.Ct. at 2472. or Inciso. There Pheaster by held either that one of the possibility very real Making G. District Court’s Procedure of attempt plot might participants other a Record of the Exhibits might that be in the destroy evidence argues Pheaster that the district Thus, im agents the were entitled to car. procedure making a record of the court’s immediately; it car and to search the pound exhibits marked for identification was im guard required post not they were and constituted proper reversible error. In Maroney, it. Chambers v. 399 U.S. around presence jury, the court read into 52, 1975, (1970). 26 L.Ed.2d 419 90 S.Ct. the record the number and description of all adding exigency to the additional factor An exhibits and handled them such a possibility was the the circumstances jury might way that able to see evidence that would the car contained that agree procedure that this is them. We before, Larry to find Adell the F.B.I. enable improper highly fraught po happened, by he was killed apparently as prejudice grave tential for to the defend his abductors. ant, but we have examined circum exigent cir argues that by of the action taken the district stances case, exist in the instant did not cumstances court and are convinced that the defendants gave the the information that because prejudiced by action. How cause to search Pheaster’s agents probable ever, emphasize procedure we that them well in advance of by was known car presence should not be followed in the appear It does to search. their decision Nothing gained, jury. great and a attempted to might have agents that may be lost. amount warrant for the car at the secure a search they the arrest time that obtained same BY III. ERRORS ASSERTED INCISO 12, 1974, July on two for Pheaster warrant Admissibility Hearsay A. Testimony Although his arrest. we be days before Concerning Larry Statements of Adell possible whenever the better lieve that Appellant argues Inciso to obtain a search warrant the district practice erred in advance, admitting so does not ne hearsay testimony the failure to do court teenaged exigencies justifying Larry a warrant- friends of Adell gate other two concerning point, of an statements made Larry search automobile. On less 1, 1974, complete agreement with the day disappeared. are in June he we objections opinion Supreme Timely ques- the recent were made to the plurality Lewis, testimony decision Cardwell which elicited the on the tions 41 L.Ed.2d 325 questions ground called for hear- disposed argu which of a similar (1974), response, say. attorney the Government following ment in the manner: testimony stated that was offered for “Assuming probable previous- purpose showing the limited the “state of cause existed, princi- instructing ly Larry”.11 we know of no case or mind of After memorandum, was little discussion of the the Government advanced three there trial, support disputed In its the use of the it was well briefed. trial theories issue June 1974. The consider the testimo- only correctness of that that it could as- is, view, sumption not for “the purpose key our that limited ny for said”, [Larry] analysis of what of this contention of falsity error. The truth argues Larry’s witnesses to an- allowed the Government court statements district Gomes, Lar- were relevant Francine to two issues in the questions. case. swer evening disap- that he First the statements are said be relevant date on ry’s picked when to an issue created defense when testified peared, attorney attempted that he was Inciso’s evening, he told her to show that up that her at Larry kidnapped North had not been Angelo meet Sambo’s but had dis- going marijuana appeared “pick up pound voluntarily part P.M. to simulated 9:30 designed him for free”. Angelo promised kidnapping money had to extort also testified that p. wealthy R.T. Vol. 286. She father from whom he was al- estranged. occa- In Larry legedly with on another his appeal, she had been brief on Angelo, and, and he met a man named concedes the relevance presuma- when Inciso sion as that man. bly, admissibility the defendant the identified statements to she approximate- Larry it was that stated that “show did not voluntarily disap- Gomes Miss However, Larry argues went into the Inciso pear”. P.M. when that for this ly 9:15 Sendejas, Larry’s Doug purpose, one of limited there lot. was no need to parking name person at North with Larry was with him Sambo’s the whom who intended to friends meet, testified disappearance, to his and that the district court’s prior limiting just similar statements to was Larry had made instruction insufficient to overcome the that evening of early to which he prejudice exposed by in the afternoon the him evening Second, meeting testimony.12 a that the regarding 1st Government ar- June Sendejas testified gues Mr. also that the statements Angelo. are relevant and with that, intended, Larry left the table Sambo’s admissible show as Larry that when lot, parking Larry parking into the did meet Inciso in the go lot at North Sam- Angelo going evening 1, to meet North on the that “he bo’s of June 1974. stated 5, p. R.T. Vol. right theory he’d be back.” If the Government’s second ad- successful, is missibility arguments Inciso’s the district court contention Inciso’s regarding the excision of his name from the admitting hearsay testimony the erred in admitted theory statements under the first premised on the view that Larry’s friends is obviously mooted. is properly could not be used the statements determining Larry to conclude that did In the admissibility the evidence, parking disputed apply in the lot of Sam- we the meet Inciso standard of fact approximately 9:30 P.M. on 26 of the Federal North Rule Rules of Criminal bo’s First, upon prejudice testimony. outweigh poten- the Government relied tential would far the exception interpreted in the state-of-mind testimony, limiting tial relevance of the and a Hillmon, v. 145 U.S. Life Insurance Co. Mutual sufficiently safeguard instruction would the Second, (1892). L.Ed. 706 12 S.Ct. Shepard States, defendant. In v. United the statement of the declarant also because (1933), L.Ed. 196 Justice marijuana, to obtain a an intention indicated expressed language Cardozo memorable the substance, argued the Government controlled inadequacies practical limiting instructions: testimony as a declara- was admissible beyond so subtle “Discrimination feat Finally, against penal interest. because of tion ordinary compass of minds. The reverberat- by Larry purported that he was statements clang accusatory ing of those words would being kidnapped by Angelo (evidence afraid ordinary drown all weaker sounds. It is for apparently introduced), never it was which minds, psychoanalysts, and not for that our testimony argued that was admissible un- They rules of evidence are framed. have hearsay exception allowing statements of der a very their source often in considerations of Only first of these theo- condition. mental convenience, practical administrative ex- appeal. is involved this ries pediency, logic. and not rules of When the great upset is so as to only theory risk of confusion under which the this the 12. Were advantage, in, goes testimony balance of evidence out.” come we would tend to could context, 103-104, po- agree at 25. with Inciso. such Id. at provides time trine at the that when governed performance Procedure which standard, particular act by Under an individual is an trial below. case, his (state mind) to decide issues issue in a intention required District Court perform “admissibility may of evidence” act From concerning the shown. intention, trier may of the com- of fact draw principles according to the “the that the person the inference carried out interpreted by may be they law as mon performed light of intention act. Within States of the United courts framework, conceptual hearsay evi- experience.” reason and person dence of statements position that The Government’s to show his tend intention deemed admis- can be used exception. Adell’s statements under state of mind sible meeting objection Inciso did oc Inciso’s the doctrine concerns prove important question application its situations in which the cur raises a difficult has stated his “Hill declarant intention to do scope of the so-called concerning the something person, with another and the is- doctrine”, species particular mon is whether he did so. sue There can be no exception general “state of mind” the theory doubt that of the Hillmon doc- is inadmissible. hearsay evidence rule that trine is different when the declarant’s from the fa its name The doctrine takes necessarily statement of intention requires decision in Mutual Supreme Court mous the action of one or more others if it is to Hillmon, 145 U.S. Insurance Co. Life fulfilled. be (1892). That the 36 L.Ed. 706 controversy create doctrine should Hillmon hearsay When evidence concerns the de- it is an surprising, is confusion not statement of clarant’s his intention to do the state of extraordinary doctrine. Under with something person, another the Hillmon hearsay evidence is admis exception, mind requires that doctrine the trier of fact infer the state of mind of the if it bears on sible from the state of mind of the declarant state of mind is an and if that declarant particular probability only by act not example, case. For statements in the issue but by person. the declarant also the other which demonstrate that he by a testator objections can against Several be raised a are necessary testamentary intent had would doctrine that allow such an inference intent when it is in to show that admissible objection made. One such to be is based on exception embodied in the Hill issue. unreliability of the inference13 but is different, fundamentally doctrine is not, view, mon compelling.14 our A much require it does not that the state of because significant troubling objection more is an actual issue in declarant be mind inconsistency based on the of such an infer- Instead, case. under the Hillmon- doc ence the state exception. with of mind This the declarant is trine the state of mind of problem easily perceived is more when one inferentially prove other matters really compound used divides what is a state- simply, component in issue. the doc- into parts. which are Stated ment its In the in- necessary concern, in order for the intended act to be Because of this one treatise states that, performed, myriad contingencies of state of mind to “Use of declarations could in- then, subsequent might, prove conduct be limit- tervene to frustrate the fulfillmentof the inten- proof of conduct that would not have ed to cooperation The fact that the tion. of another cooperation persons required the substantial necessary party is if the intended act is to be Hand- other than the declarant.” McCormick’s performed important contingen- adds another (E. Cleary ed. of the Law of Evidence 698 book cy, degree is one of but the difference rather However, authority 1972). also that same rec- possible unreliability kind. The than imposed ognizes that “courts have not the limi- present to be drawn from the inference tion is a matter evidencewhich fact, inten- tation”. Id. at 698-699. weight going to the might argued trier of present inference from a statement of 14. The ground it not be a should for com- per- that the act intended was in fact intention excluding admittedly pletely relevant evi- nothing inference. formed is more than an dence. parties where no actions other are Even Adell, case, “I was. The Larry statement defendants in Hillmon stant introduced Angelo parking meet lot going to evidence which tended am to show that body two pound grass”, really Crooked Creek was get not that of Hillmon, state- but was that of man, The first is the obvious another statements. Adoph Frederick Larry’s part intention. The second is an Walters. As ment of of this attempt to show Angelo’s intention. it was Walters who implicit statement Creek, was killed at Crooked meeting place is to take in a defendants Surely, if the attempted to introduce two letters Angelo habitually does written location Wichita, Kansas, from shortly Walters Angelo must assume that in- one frequent, he disappeared, before never to be heard to meet there if one is to tended letters, again. In the one written to Angelo was in the the inference make his sister and the fiancee,15 other to his parking meeting lot and the occurred. The Walters stated that he intended to leave second, important point implicit is that Wichita in the near future and to travel nothing Larry’s has to do statement with a man named Hillmon. In the letter For if example, Larry’s of mind. state financee, to his Walters explained that Hill- said, that Larry had testified had friends making mon was expedition to search going “Angelo parking to be lot of ranch, for a suitable site for a sheep tonight with pound North Sambo’s that Hillmon had promised him employment exception any of mind no state grass”, very the ranch on favorable terms. hearsay rule would exception to other objection Plaintiff’s to the introduction of Yet, this is in effect at least be available. ground letters on the they were testimony of what the did attribute to half irrelevant, incompetent, hearsay Larry. by the trial sustained court. the theoretical awkwardness as Despite Supreme summarily rejected application of the Hillmon sociated argument that the letters were admissi now to facts such those before doctrine “as ble memoranda made in the ordinary us, authority appli in favor of such an business,” 295, 12 course of 145 at U.S. S.Ct. impressive, beginning cation at but then they held that were admis Hillmon, decision itself. seminal Hillmon as evidence sible of Walters’ intention: 285, 12 909, was a civil supra, 145 U.S. S.Ct. involving dispute a colorful over cer “The letters question case were compe- tent, claims. The factual is tain life insurance not as narratives of facts communi- Hillmon, others, in the case was whether who by sue cated to the writer yet nor as a number of life insurance purchased proof actually had that he went away from Wichita, naming beneficiary, that, his wife as had policies but as evidence shortly be- by discharge killed the accidental of a the time when been fore other evidence tended Creek, campsite in a near gun away, Crooked to show that he went he had the killed, he been so his wife going, Kansas. If had intention of and of going with Hillmon, under the insur probable was entitled benefits which made it more policies. go The insurance defendant both that he did and that ance he went contended, however, Hillmon, that Hill companies with than if there had been no hiding, was not but was in proof dead of such intention. In view mon conflicting part conspiracy testimony the claims were mass of introduced companies. upon question While it was undis of whether it defraud was the that someone had been killed in the body of Walters that was found in Hill- puted Creek, campsite camp, might at there was com properly Crooked mon’s this evidence disagreement to who the victim influence the determining plete prepared testify letter written to Walters’ fiancee was 15. The as to its contents. 287-289, produced U.S. at 12 S.Ct. as evidence. The letter and offered lost, but she sister had been Walters’ written week, 295-296, gone a at or for a certain 145 U.S. destina- question.” added).16 tion, incontestable, why may which seems (emphasis at 912-913 proved way it not be in the same that a case, a civil Although Hillmon designated person was to bear him com- approval a num- cited with Supreme Court ” pany?’ support of its deci- of criminal cases ber The Justice then concluded: Chief State, them, Hunter v. One of sion. “ 495, involved facts re- (40 N.J.L.) ordinary ‘If it was in the train of events Vroom here. those before us markably similar to for this man to leave word or state facts and the going, where he was it seems to me it Court summarized equally say as follows: so for him to with holding of that case whom going.’ he was Hunter v. State Hunter for [11 indictment of one “Upon an N.J.Law, 495, 534, Vroom], 538.” Camden, Armstrong at the murder of one at at 914. S.Ct. Appeals of New of Errors the Court held that unanimously Arm- Jersey applied by The Hillmon doctrine has been to his son at strong’s declarations oral Supreme People California on the afternoon before Philadelphia, Alcalde, 177, 148 (1944), Cal.2d P.2d 627 murder, as a letter as well night of the closely paral with facts which criminal case time and the same written him in Hunter. In Alcalde the lel those defend wife, stating that he was each place to his degree ant was tried and convicted of first on busi- Hunter to Camden going with slaying for the brutal of a woman murder ness, rightly admitted in evidence.” seeing socially. whom he had been One of 299, 12 at 914. 145 U.S. Supreme the issues before the California quoted long passage then The Court the asserted error Court was trial Beasley in opinion allowing of Chief Justice court in the introduction of certain primary expressed concern testimony hearsay concerning Hunter. statements any- was whether there was passage victim day made on the of her mur about the victim’s state- thing unnatural case, der. As in the instant the testimony might suggest pur- an ulterior ments incriminating, highly because the vic and, hence, unreliability. Having pose reportedly going tim said that she was out unreliability,17 indicia of Chief found no Frank, defendant, evening Beasley sugges- aside the Justice brushed appeal, murdered. On majority she was specific reference to the de- tion Supreme of the California Court affirmed Speak- should have been omitted. fendant conviction, holding defendant’s Beasley rhetorically, Chief Justice ing leading was “the Hillmon case on the ad asked: missibility of declarations of intent to do an “ legitimate by proof to show a man’s as the ‘If it is act act thereafter was that he left his home to accomplished.”

own declarations P.2d at 631. Without Mosley, regarded Quoting justice. from Insurance Co. v. declarations are as 16. Such 397, 404, (1869), acts, competent any 19 L.Ed. 437 the Wall. and are as as verbal applicable the “rule to this case” testimony, stated relevant to the issue. when other as follows: falsity inquiry or is an for the Their truth ” “ bodily feelings jury.’ U.S. at at 913. ‘Wherever the or mental of proved, to be the an individual are material reported argues statements 17. Inciso feelings origi- expressions are of such usual Larry’s friends should not have been admit- competent expres- evidence. Those nal and Larry, evidence because sixteen “[a] ted into it are the natural reflexes of what sions narcotics”, boy year involved with was an old impossible might other be to show testi- agree testimony, mony. We cannot with unreliable declarant. If there be such other this necessary may argument. to set the thus devel- review of the record re- be facts Our light, give oped nothing in their true and to them of the about the circumstances veals independent, explan- proper As by Larry suggest any their effect. to rea- made statements atory, evidence, or corroborative it reliability. is often doubt their son to indispensable to the due administration summarize all codification of to “define or the state of purporting exception mind upon the admissi- 803(3) or restrictions in Rule provide does not limitations direct evidence, court such id. at statement of the Hillmon bility of” doctrine. Rule considera- prudential 803(3) provides several exemption mention an did from the hearsay Chief unlike those mentioned rule for the following tions not evidence: Thus, the de- Beasley in Hunter. Justice mental, emotional, “Then existing or dead or otherwise unavail- should be clarant condition. A physical statement able, testimony concerning and then existing mind, declarant’s state possess should relevant and be emotion, sensation, statements physical or condition 631. high degree of trustworthiness. Id. at intent, motive, (such plan, design, men- other noted that there was court also The feeling, pain, bodily health), tal guilt from which the evidence defendant’s including a statement of memory not or stan- Applying could be inferred. these prove fact belief remembered or dards, trial the court found no error in the execution, believed unless it relates to the disputed hearsay admission of the court’s revocation, identification, or terms of de- “Unquestionably the deceased’s testimony. will.” clarant’s in- logical of her and the intent statement 803(3)is Rule silent regarding the therefrom, namely, be drawn ference doctrine, the Advisory Hillmon both Com- night, that she was the defendant on Proposed mittee Rules guilt to the issue of the relevant specifi- Committee the Judiciary House the defendant.” Id. at addressed the cally noting doctrine. After 803(3) In addition to the decisions in Hillmon that Rule would not allow the admis- Alcalde, support memory, Government’s statements Advisory sion of be Evi- position broadly can found in California stated Committee and the new Federal Rules of dence Code “The rule of Mutual Life Ins. v.Co. Hill- Evidence, although in each instance resort mon allowing evidence [citation omitted] must made to the comments to rele- tending prove of intention as the doing provisions. vant intended, is, course, act of the left (3), to Paragraph Note undisturbed.” California Section of the Evidence at 585. U.S.C.A. exception general carves out an Code hearsay Significantly, rule statements of a declarant’s us, before the does lar issue now comment added). phasis and, therefore, cite the Alcalde decision in- Although certainly the matter is not free rejects directly urged by the limitation Inci- doubt, we read the note from of the Adviso- so. ry presuming that the Hill- Committee Although the new Evi- incorporated Federal Rules of mon would be in full doctrine force, including necessarily dence were in force the time of the the application below, light them for any language suggests trial we refer to itself. The in Hillmon might the the they that shed on status of Committee Advisory presumed that the interpretation at the time of the trial. The common law that such broad was the 380 not conclude that the position. law The notes district court common erred in

prevailing Judiciary allowing testimony concerning on the the Committee House the statements language Adell’s to be introduced. significantly different. are legislative suggests a intention there used body per- what that also on

to cut back Admissibility and Abuse Hearsay B. prevailing common law be the ceived Testimony Concerning Statements the Hillmon doctrine view, namely, that of Pheaster facts such as those applied to now be could raises certain Inciso also issues concern- us. before ing testimony Elmyra Mapes, the of Mrs. recognize we the force of witness. Inciso’s first conten- Government Hill application the of the objection to tion is that the district court erred in admit- mon doctrine in the instant case,18 testimony by we can- ting Mapes concerning Mrs. meeting the Hillmon doctrine has come 18. Criticism of with Frank could not be used to “in- distinguished quarters, very judicial from both duce the belief that the defendant went out However, position deceased, academic. took her to the scene of the * * * definitely minority judicial posi- critics crime and there murdered her with- tion, primarily in stated dicta and dissent. setting against hearsay.” out aside the rule Id. opinion Shepard Any legitimate In his for the Court in v. other opinion, use of at 633. ration, the decla- States, 290 U.S. 78 insignificant in his outweighed by was so that (1933), Justice Cardozo indicated L.Ed.2d prejudice it was enormous apparent hostility in dicta an to the Hillmon allowing in defendant to hear it. to the Shepard hearsay testimony doctrine. involved analysis different, Finally, the exhaustive dramatically character related, different from hearsay by Ap- issue Court of in the instant case. The Court reviewed the peals for the District of Columbia in United army of an medical officer for the conviction Brown, U.S.App.D.C. 190, States v. by poison. wife The asserted murder of his (1974), provides support inferential F.2d admission, by over error the trial court was its urged position by for the Inciso. The issue in hearsay testimony objection, of certain defense admissibility hearsay that case was the mony concerning testi- concerning by Shepard’s nurse statements Mrs. extrajudicial a victim’s decla- Shepard during her Mrs. had made final “[fjrightened may rations that he that he that, testimony nurse’s after illness. The killed” the defendant. Id. at 762. After whiskey asking enough left there was whether cases, surveying the relevant the court stated a just had drunk in the bottle which she “synthesis” governing principles. One collapse poison, prior to make a test for to her of the cases which was criticized the court stated, Shepard poi- Shepard “Dr. has Mrs. Supreme decision the California theory by the me.” One advanced soned Merkouris, People Court v. 52 Cal.2d testimony appeal was that the Government (1959), upon by 344 P.2d 1 a case relied Shepard to show that Mrs. did admissible Government in the instant case. The court in and, thus, suicidal tendencies to refute not have hearsay testimony Merkouris held that ing show- argument that she took her own the defense fear of the the victim’s defendant could rejected theory, holding life. The Court properly probable be admitted to show the testimony had not been admitted for identity killer. The court in Brown ex- suggested by purpose the Govern- limited following pressed holding, criticism of that that, if even it had been admitted for ment might apply appli- also a criticism which outweighed purpose, its relevance was far that by Hillmon cation of the doctrine the instant prejudice it would create for the the extreme case: rejecting In the Government’s theo- defendant. ry, approach violates “Such an the fundamental refused extend the state the Court necessary safeguards to the use of such testi- exception memory. to statements of mind mony Through a circui- [citation omitted]. exception, survey of mind Jus- of the state inferences, series of the court tous reverses suggest appeared to that the Hill- tice Cardozo of the statement so as to the effect reflect on upon is limited to “suits insur- doctrine mon defendant’s intent and actions rather than 22, although policies”, id. at ance (victim). mind of the state of the declarant by the in Hillmon refute cases cited Court very hoped result This is it is suggestion. prevent.” limiting instruction will upon by P.2d Shepard was relied The decision (emphasis original). at 771 Supreme Traynor of the California Justice frequently critique For a cited academic vigorous dissent from the decision in his doctrine, Alcalde, Maguire, majority People Hillmon see Hillmon reached Thirty-Three After, Traynor argued supra, Years 627. Justice 148 P.2d Harv.L. Case— regarding (1925). that the victim’s declarations her Rev. 709

381 cord, Snow, which United by 730, Pheaster States v. 521 to her F.2d made statements Cir., kidnapping (9th 1975). Inciso in the implicate tended is a limited one of issue here scheme. raised Carbo was not the question co-conspirator of the elements the whether these require- definition of foundational present. rule were hearsay the exception ments, but rather allocation responsi- the is that the contention second Inciso’s bility judge between and determin- deliberately distorted attorney Government they ing whether have been satisfied. The testimony argu- in his final Mapes’ Mrs. factual issue Carbo was whether the jury. the ment co-conspirators, defendants were but the analysis applicable is equally to factual that evidence of well settled It is findings concerning the other foundational conspirator is in by made one statements requirements: against admissible a co- circumstances some then, judge the “It and not the the fact the evi despite conspirator jury, admissibility to determine the un might be inadmissible otherwise dence In making declarations. this determina- See, g., hearsay rule. e. United der test is not whether tion the the defend- 609, (9th F.2d Calaway, v. States by independent connection had ants’ evi- Ellsworth, 481 Cir., 1975); v. United States proved beyond a dence been reasonable denied, 864, (9 Cir.), cert. 870-871 F.2d doubt, whether, accepting the inde- 38 L.Ed.2d 332 94 S.Ct. U.S. credible, evidence as pendent judge is States, 314 F.2d Carbo (1973); prima (one satisfied that a facie case denied, 1963), (9 cert. 735-736 Cir. support finding) which would has been 12 L.Ed.2d jury’s made. Thereafter it is the func- Indeed, challenge does not Inciso (1964). evidence, tion to determine whether the Rather, he bases proposition. basic declarations, including the is credible and alleged failure of the argument beyond convincing a reasonable doubt.” all of the neces to establish Government Id. the co- requirements of sary foundational principles Under the established in Focusing exclusive exception. conspirator Carbo, question here is whether requirement that the foundational ly on the prima showing made a facie Government by hearsay declarant must statements made by the statements Pheaster to conspiracy, furtherance of the made in “in furtherance of the Mapes conspir were statements argues that “Pheaster’s Inciso This is a factual determination for acy”. any conspiracy furtherance of not in were trial court is uniquely well which admissible not have been should argues that statements Inciso placed. Inciso.” against guilt party to a third an admission of were - body A rather extensive of case likely destroy were to hinder or emerged from this Court’s consider has law taken conspiracy. The broader view co-conspirator exception. The ation the district court was Government analysis was established framework basic Mapes’ considerably Mrs. role States, v. United decision in Carbo in our par disinterested third than that of a more F.2d 718. As stated Carbo: supra, grant Mapes Mrs. testified under ty. accompanied had necessary immunity. foundation consists She “The drop-site Springs in Palm prerequisites. First: first distinct three might have position furtherance of the where she is in had taken declaration made the counter-surveillance contem performed it was second: conspiracy; During the ransom letters. conspiracy; plated pendency during the 22, 1974, in which proof of of June independent conversation there third: made, Pheaster disputed and of the statements conspiracy existence Mapes Mrs. to accom to recruit attempted the de- declarant connection drop-site in Corona second Ac- him to the pany n. 21. at 735 Id. it.” fendant any exceptions and not within to the war- Mrs. day. following the on requirement. rant Corona, woman to a going denied Mapes car in the driving Pheaster’s observed originally it was contem Because 23, drop-site on June Corona vicinity Inciso’s res nothing seized from that plated meeting on June Also, during the trial, sup introduced at no would be idence Mapes to Mrs. transferred before trial. motions were filed pression type the ransom used to typewriter the in later decided to the Government When sup- was sufficient to evidence letters. time, that the seized at evidence troduce had been finding that the statements port to al exercised its discretion court district conspiracy. the in furtherance made introduced, subject evidence to low the Inciso suppression motions any to the ac contends that Inciso also made, Motions were make. might attorney, both in tion of the Government at which the District hearing was conducted Mapes and in his of Mrs. his examination the evidence determined Court deliberately dis argument to final at Later the Government admissible. in concerning Inciso’s testimony her torted other evidence seized tempted to introduce kidnapping. volvement objected, time. When Inciso the same in its Mapes’ testimony Mrs. has reviewed objection for court overruled the the conduct has concluded that entirety and proce While the previously stated. reasons not consti attorney does Government ideal, was, most it for the was not dure asked questions error. The reversible tute by vacilla dictated the Government’s part, devi attorney were not the Government concerning it would the evidence tion given by answers confusing, and the ous exercised its The district court present. deal that the business Mapes indicated Mrs. to be intro allow the evidence to discretion with Inciso was that Pheaster had so, doing gave it In Inciso sufficient duced. (although Mrs. abducting Larry Adell present objections his opportunity identity Mapes did know appeal. position on preserve time). argument In his final at that victim examined Inciso’s Fourth We have jury, attorney may the Government it to be argument and find Amendment Mapes’ testimony, Mrs. overstated have ei The items seized were merit. without al objection was raised the defense no warrant or by the search covered ther were mentioned at though other matters exception “plain view” under seized immediately side bar after the close within Inci lawfully agents once argument. Any preju the Government’s Hampshire, v. New Coolidge residence. so’s argument closing to Inciso from the dice supra, 403 U.S. when, pursuant a re surely cured Estelle, 78; supra, 492 Quigg v. L.Ed.2d jury, testimony the entire quest from F.2d 343. Mapes was reread. Mrs. argues that a revolv Finally, Inciso during the search of his residence er seized Admissibility of Evidence Dur- Seized C. excluded, prej its have been because should ing the Inciso’s Residence Search val outweighed probative him its udice challenges the district court’s Inciso also argument, Inciso of this support ue. suppress tangible certain evi- kidnapped refusal Larry Adell was states “[i]f during found search of his resi- gun dence any absolutely no evidence there July 1976. The search was apparent dence In a trial for an ever used.” warrant, to a search are pursuant which kidnapping, made the circumstances of Rather, disputed. is not victim’s validity completely unknown because of upon alleged death probable is based certain argument absence and continued district irregularities kidnappers, associated of his hands procedural the introduction upon alleged decision to allow hearing and court suppression was not error. the warrant revolver not covered of items seizure of Beach. A Testimony scrap Mr. and of paper containing the D. Rebuttal of pay telephone Adell number Mrs. was found in Telephone the search Inciso’s residence. court argues that district Inciso company records showed that the dates of Government to call allowing the in erred the calls made to that number from Palm testify to in rebuttal. Adell Mr. and Mrs. Springs, working, where was Inciso directly concerning the use of rebuttal Decisions corresponded major to in events the kidnap- sound discretion within lie evidence pers’ efforts to obtain the ransom from Mr. not believe that this We do court. the trial Adell. fictitious numbers were in the case. abused instant was discretion given by telephone the caller compa- to ny occasions, on four accurate numbers to Sufficiency Evidence E. given occasions, on, two and the pay Support Conviction telephones with those numbers were located challenges sufficiency of Inciso less a than block place from the where to all twelve counts of the evidence as working. Inciso was In addition to calls considering challenge, indictment. placed over pay telephones, Pheaster and “ evidence, ‘whether the we must determine met Inciso several times at out-of-the-way to favorably govern most considered places. Finally, Inciso’s involvement in the ment, permit such as to a rational kidnapping scheme could be inferred from conclusion [trier fact] Mapes’ Mrs. testimony. Although circum- guilty beyond a reasonable accused stantial, the against evidence Inciso is suffi- ” Jones, v. 518 F.2d United States doubt.’ support jury cient verdict. 1975), (9 quoting United Cir. States (9 1969) Nelson, F.2d Cir. IV. ERROR ASSERTED BY BOTH AP- original). The sufficiency (brackets PELLANTS Larry to show that Adell was the evidence Both Pheaster and Inciso contend in interstate commerce is con transported there is insufficient evidence inter We now consider the suffi infra. sidered foreign transportation state of Larry evidence to show that Inciso ciency Adell sustain their convictions under kidnap Larry with others to Adell conspired One Count of the Indictment. Although One) knowingly (Count participated 1201(b) a provides Section of Title 18 statu communicating ransom extor demands and tory presumption of interstate or foreign (Counts father to his Two- threats tionate triggered by commerce which would be Twelve). case, of this facts the district court did not statutory pre instruct as against evidence can Pheaster sumption of its concern that because overwhelming. properly be characterized was unconstitutional.19 provision Because therefore, is, highly significant It court, by the district of that decision we were in frequent and Inciso com- Pheaster determine whether there was must suffi with each other by telephone munication transportation. evidence of such cient prior to the days kidnapping. until a few for such a review was standard stated su disappeared from lot Larry parking Adell a according standard, to that pra. Viewed gone express he had inten- where transportation, interstate the evidence of meeting After dis- Larry’s Inciso. tion overwhelming, is sufficient while appearance, stopped Pheaster and Inciso the conviction. sustain communicating with each their other over 14, 1974, However, Shortly July after his arrest on telephones. they ap- residence Larry agents to contact Pheaster told F.B.I. Adell parently continued each other being Vegas by telephones. was ob- was held Las man using pay vicinity telephone “Ron”. There substantial pay served in the named cor- Long Larry service evidence that had particular station in roborative been express opinion no 19. We as to constitutionality provision. of that charge of conspiracy.1 Viewing to Las all the evi- Angeles area the Los out of moved pay light attempt most favorable to the the third dence after Vegas must, on or about was seen as I I am con- absolutely prosecution, failed. ransom of his father of one 1, 1974, by the the evidence is insufficient ei- vinced July Valley, Cali- Apple or to establish drugstore support conviction ther friends Springs Palm fornia, is between a reasonable doubt that the victim beyond to be appeared he At that time Vegas. transported in interstate commerce. Las kind of mild is, course, “under some and pale” transportation an indis- “stone Such 1330, 10, pp. R.T. Vol. form of sedation.” element of the crime. And as to pensable on two was later seen Larry issue, agree 1332-1333. I cannot that there simply that Marilyn by once Vegas, in Las occasions corroborative evidence” was “substantial Cote, time Laurie Coffin and another victim, Adell, Larry was “moved high him from school. whom knew both of Vegas.” Angeles Los area to Las out of the on by Marilyn Coffin he was seen When alone, comment Standing Pheaster’s initial boys at a 3, Larry with two other was July which police, subsequently he the casinos. When in one of blackjack table twice, that Adell was be- changed at least be- Cote sometime by Laurie was seen he Nevada, ing Vegas, held in Las is not ade- 6, Larry walking was and July 4 tween States, Opper v. quate. ap- the casinos and through one of quickly (1954). 99 L.Ed. 101 75 S.Ct. she had paler and than thinner when peared Apple Valley, in Adell Califor- sighting of the circumstances him. seen last nia, witness, Thus, nothing. adds by a Vegas might in Las Larry’s presence question is whether Pheaster’s statement with those of somewhat inconsistent appear sufficiently testimony corroborated victim, argued point kidnap a of two of Adell’s school friends that each sufficient There was jury rejected. times, apparently saw Adell at different jury could find which- the evidence restraint, gambling in under no casinos in in inter- transported Larry Adell was Vegas July around 1974. In Las both commerce.20 state brief, cases, sightings very at a distance, above, profile. we affirm One wit- out the reasons set For even admitted that she was not sure nesses convictions. was, fact, had seen person she Adell. (concurring and dis- Judge ELY, Circuit it, testimony, as I see This does not rise to senting): necessary level of “substantial indepen- which would tend to evidence establish dent Renfrew, customary in his My Brother Op- of the statement.” the trustworthiness thoughtful scholarly and way, has written Assuming 75 S.Ct. at 164. supra per, I case. sad and difficult in this opinion trustworthiness, however, it does not its con- of Pheaster’s in the affirmance concur doubt, pos- beyond a reasonable negate, charges, none of substantive viction on the Vegas that Adell went to Las alone se, sibility I per kidnapping involved The evidence is sim- without coercion. majori- from the respectfully must dissent prove requisite too tenuous to ply on the affirmance of Inciso’s conviction ty’s jury argues 1. I also dissent from the affirmance of Pheast- also 20. The Government charge conspiracy have found that Adell was trans- on the could er’s conviction foreign ported to obtain that the evidence was insuffi- commerce. In order I believe because supply phenobarbitol, drug transportation that could be interstate cient to establish victim, However, kidnap to sedate a Pheaster told a used since the Government’s victim. son, drug epileptic stated, during argument, that the his doctor for oral counsel trip going accompany eligible parole years him on a who was will be Pheaster There was some conspiracy Mexico. reference both his life sentence under crimes, a “calcite” mine owned 70-year record to for the substantive sentence his holding In view of to inter- in Mexico. our apply concurrent sentence rule in I would commerce, pass we need not on the suffi- state case. ciency of this evidence. certainty the essential element of degree of transportation. interstate UNITED America, STATES of participation to Inciso’s respect Plaintiff-Appellee, v. there doubt

kidnapping conspiracy, is no hearsay lat- Adell’s statement that the O’LOONEY, “Angelo” Michael going to meet was the ter Defendant-Appellant. linking Inciso to the con- strongest evidence rele- spiracy. obviously The statement No. 75-2666. state vant to Adell’s of mind and his future highly it was prejudicial intent. But also United States Court of Appeals, could Inciso. Adell’s statement not be ad- Circuit. Ninth the attendant mitted without and substan- Aug. 1976. that, despite judge’s limiting tial risk instruction, rely 13, 1976. would Denied Dec. Certiorari prove only the statement act See Adell, but also Inciso. those of obligated century-old I am the almost Co. v.

precedent of Mutual Life Insurance

Hillmon, (1892) 285, 12 909 145 U.S. S.Ct. decision that majority’s

concur in the did reversible error court not commit

trial admitting alleged Adell’s statement.

Nevertheless, my while Brother Renfrew majority that a of courts

doubtless correct to the so-called Hillmon doct

have adhered

rine,2 holding also has it is true that criticism some severe subjected

been distinguished judicial most

of our Nation’s therefore, strongly am impelled, I

scholars. my agreement own emphasize Shepard Justice Cardozo in v.

views of Mr. States, 290 U.S. 78 (1933) Traynor Justice

L.Ed. 196 Chief Al dissenting opinion People

in his

calde, (1944). 148 P.2d 627 Cal.2d wrote, “A Traynor Justice declaration as

As person .

to what one intended do safely accepted

cannot evidence 189,148 probably

what another did.” Id. at

P.2d 633. The fact that members of Judiciary specifically

the House Committee

noted their intent to limit the Hillmon doc 803(3) of the new

trine Rule Federal of Evidence indicates that the sound

Rules two

criticisms voiced those eminent judiciary, as well as other members scholars,3 widely are now believed to

legal

be valid. supra. Exception 2. See Seligman, Hearsay Rule, An note (1912). Harv.L.Rev. Thirty- Maguire, The Hillmon 3. See Case— Atter, (1925); Three Years Harv.L.Rev. Notes House Com- existing physical or Judiciary regarding “then mental state”. on the mittee Rule 803(3) specific Hillmon doctrine is codified in are far more revealing: Section 1250(2) which use of hear- allows the such “However, the Committee intends that when say prove evidence it “is offered to Rule be construed to limit the doc- explain acts or conduct declarant.” trine of Mutual Life Insurance Co. v. that, 1250(2) comment to states Section Hillmon so as to render [citation omitted] “Thus, a statement of the declarant’s intent by a statements of intent declarant ad- prove certain acts is admissible to to do only conduct, prove missible his future Although neither the he did those acts.” future conduct of another nor that language statute 93-650, Report person.” House No. Note specifically particu- addresses the comment (3), (em- Paragraph 28 U.S.C.A. at 579

Case Details

Case Name: United States v. Hugh MacLeod Pheaster, United States of America v. Angelo Inciso

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 19, 1976

Citation: 544 F.2d 353

Docket Number: 75-1004 and 74-3308

Court Abbreviation: 9th Cir.