United States v. Joel P. Bekowies

8 judgment, summary party

motion for a allegations may upon not denials rest America, UNITED STATES of pleadings; forth his must set Plaintiff-Appellee, showing genuine specific issue facts v. trial.5 did not do so and for Garcia BEKOWIES, Defendant-Appellant. Joel P. may complain appeal therefore not on No. 25407. the trial court’s action.6 Appeals, United States Court of Ninth Circuit. appellant attempts for Counsel rectify Aug. 24, 1970. failure to contro his manifest proper facts at vert Rehearing 29, Denied Oct. 1970. affixing “supplemental his brief7 a amending affidavit” executed Garcia, stating that, “to the best engines, propellers, and shafts installed on this boat moving capable

and it was under its power own as a matter of fact final taken to the Yacht harbor for day inspection just two after he injured.” is fundamental presented may trial not facts at be Any appeal. appeal asserted on on action only properly can on based matters trial; may considered at court therefore, court on reverse trial in the record.8

basis facts an affida Garcia’s belated submission of nothing improper vit more than an attempt mat this court consider dehors

ters record.9 Affirmed. ready Ultimately, a time when at the vessel is our clerk’s office contacted the * * * Appellant’s attorney appellant sea exclusive who admitted that remedy [against shipyard] under there inwas one document. At Longshoremen’s best, and Harbor Work- these circumstances reveal careless- Compensation Act, preparation appellant’s er’s and she has no ness remedy against ship] hereby practice disapprov- or her claim- [the brief. Such * * * (owner) ant in these in rem ed. proceedings. Airlines, Inc., 8. Cox v. Northwest 379 F. F.2d at 686. 893, (7th 1967), 2d Cir. cert. den. 896-897 56(e) ; Wright, 5. Fed.R.Civ.P. Federal C. 1044, 389 U.S. 19 L.Ed.2d S.Ct. 1970). (2d Courts § at 444 ed. (1968) ; Merlino, Creamette Co. v. express opinion appellant (9th 6. 1961) ; We whether 289 F.2d Cir. Ca pella could seek relief in the district court un- Zurich Accident General Liabili 60(b). ty Co., (5th der Fed.R.Civ.P. Insurance 194 F.2d 1952) ; Browning Cir. Barrett cf. Counsel, brief, page 3, speaks 7. in his Co., Cir., Aug. Arms 433 F.2d 141 [5th supplemental “the affidavit 6, 1970]; Sid Richardson Foundation W. amending apparent affidavit.” This ref- (5th 430 F.2d 710 Cir. erence two documents led this court upon to embark a fruitless and time-con- suming Corp., search for the first affidavit. Stearns v. Hertz 326 F.2d 405 Inquiry (8th Cir.), about the affidavit was made of cert. den. 377 U.S. (1964) ; of this Clerk court who then made Mari- L.Ed.2d 298 quiry court, County Co-Op. Co., of the Clerk of the district Ass’n Carnation (8th such but no document was in the files. 214 F.2d 557 (argued), Morton. A. Winkel Port-

land, Or., appellant. for argued), Borgeson, Wm. B. U. Ass’t Atty., Sidney Lezak, Atty., S. U. I. S. Portland, Or., appellee. for CARTER, Before HUFSTEDLER WRIGHT, Judges. Circuit

WRIGHT, Judge: Circuit appeals from con- Joel Bekowies his concealing

viction for fugitive, federal U.S.C. § so, conspiring to do 18 U.S.C. § imposed. Concurrent sentences were We reverse for failure the law enforce- give ment officers defendant his Mir- warnings. anda February The record shows that 14, 1969, three F.B.I. police a Portland officer went to Beko- They wies’ residence. were armed with an arrest warrant for one James Nolen Davidson, wanted for violations of Agent Selective Service Act. Hixon was assigned to cover front the resi- nobody dence “to make sure that climb- (R.T. 7.) ed out windows or doors.” Agents Kaspar, McLeod and and Police Boggs Officer entered the rear and, checking residence out several apartments, other entered that of Beko- (R.T. 41, 81). wies. The officers identified themselves Jeffrey Weil,1 were admitted one living who was in the Mr. and Mrs. but claimed that nothing he knew He about Davidson. he, Bekowies, stated that and Mrs. Beko- only persons apart- wies were the in the ment. Weil’s conversation with offi- (R.T. cers took about fifteen minutes. 57-58). liarboring

1. Weil was indicted for David and the Government dismissed the con- conspiring spiracy son and for to do so. He count. pleaded guilty harboring charge, to the apartment— room —this can’t During this time Bekowies (R.T. searching the bedroom.” door without apartment, with bedroom Agent to re- asked McLeod Weil closed. living into the to come quest Bekowies porch follow- The conversation 8-9, latter (R.T. When the Agent room. Agent Kaspar’s Mc- talk with ed apparently so, McLeod again did had once After Leod. Bekowies might David- that Bekowies apart- in the denied that Davidson carefully compared fugitive. He son, the according McLeod, ment, to his own David- photograph to a statement, we needed “insisted produce iden- son, asked already apartment. We had search tification, and examined porch, going we —prior out onto have. known Davidson was scars everything except a bed- had searched Beko- then concluded room, us I allow insisted 21-23). (R.T. not Davidson. was wies 18). (R.T. the bedroom area.” to search insistence, point Agent Bekowies he advised McLeod’s At with Faced outstanding agents yielded, warrant found was a there Bekowies Davidson, (R.T. him hiding read arrest of the bed. for the under Davidson harboring stat- 18, 82). provisions of federal ute, him showed 18 U.S.C. § arrested and hand- After Davidson was any- if he knew photograph, and asked telephoned cuffed, Agent McLeod thing Bek- whereabouts. of Davidson’s Department “to insure Portland Police agents then The he not. owies said did they nothing na- had of wanted excep- apartment, with the searched He discovered that ture” on Bekowies. Bekowies told of the tion bedroom. outstanding jaywalk- had Bekowies an bed, in sick that his was wife ing Boggs placed ticket, him and Officer 58-59). (R.T. Kong Hong flu. with (R.T. 19). under arrest. Agent to took McLeod then jay- on Bekowies was released later Again porch apartment. he charge, walking on was not arrested provisions har- read the of the federal harboring charge days until four lat- boring statute, pointed out er, February (R.T. 23). on At no parked at in car the curb Davidson’s was prior to he his second arrest was front of the house. said that given warnings his Miranda or other- apart- perhaps had been in the Davidson rights. wise advised his constitutional night before, party ment at a but suppress Bekowies moved (R.T. apartment. not was then in the McLeod.3 At made to motion, hearing agents agents although The come to Bekowies’ had testified that reasonably him, although polite certain that David- courteous hiding son first explicitly was there.2 After his them none of had ever told Bekowies, Agent questioning leave, McLeod him could he nevertheless he “fairly long questions well convinced that Mr. “as felt as being quite me, stay owies was untruthful to ask I was to and answer (R.T. 14). Agent Kaspar (R.T. 45). me.” al- them.” He said he “never presence leave,” so convinced of in Davidson’s felt like in I should view apartment and, learning presence that Bek- two or three owies would not allow search of the room and the one he knew to out be bedroom, that, (R.T. 46). told “I side. 2. Their information came from an inform- one statement made after his own arrest identity February ant whose disclosed 18. These statements do not appear response record. have made been questioning initiated law enforcement suppress 3. He also moved several state- officials. We do not hold these state- arrest, ments made after Davidson’s ments inadmissible. (1967) suspect seems to ac- . will held Court Under it be The District stating custody testimony,

cepted to be in of the in- Bekowies’ if actions terrogating “apparently he officers and the surround- [Bekowies] construed, leave, circumstances, fairly he had no reasonable couldn’t but suppress motion to would have led him to reason.” supra, freely. Lowe, denied. could Rodney 1397; People 407 F.2d at v. cf. purported District Court (Anonymous), P. 21 N.Y.2d 286 N.Y. Arizona, apply of Miranda the doctrine (1967); Myers S.2d 233 N.E.2d 255 384 U.S. L.Ed.2d State, Md.App. 240 A.2d 288 (1966), interpreted de as our (1968) . States, in Lowe F. cision v. United (9th rule, Miranda, Applying 2d Cir. our we have consistent- known, Supreme ly well as Court held refused to find the usual tax-investigation suspect case, that a must warned since those inter- rights rogated by prior constitutional custo the Internal Revenue Service interrogation. go dial normally are free to come as they please. Chikata, United States By interrogation, custodial (9th 1970); 427 F.2d 385 Cir. Simon said, “questioning Court it meant initi States, (9th v. United 424 F.2d 1049 ated law enforcement officers after 1970); Spahr 409 F. person has been taken into (9th 2d 1303 Cir. deprived otherwise of his of ac freedom significant any way,” tion in 384 U.S. Similarly, high- we have held that a 444, at 86 S.Ct. at 1612. Court thus way patrolman may properly stop a mo- inquiry, begun abandoned the in Esco torist to ask for his driver’s license and Illinois, 478, bedo v. 378 84 U.S. registration giving without the Miranda (1964), 12 L.Ed.2d 977 as to warnings, interrogations of kind that investigation whether a criminal fo being commonplace so that it would be cused on the accused. unreasonable under the circumstances for a motorist to conclude he was in cus- Miranda, ques After the sole tody. Edwards, United States v. 421 whether, tion is at ques the time of his (9th 1970); F.2d 1346 Cir. tioning United States police, person the ques Chase, (9th 1969); 414 F.2d 780 Cir. tioned is custody.” “in Mathis v. Unit States, Lowe supra. v. United States, ed 391 U.S. 88 S.Ct. 20 (1968). L.Ed.2d 381 Custody will be recognized We have also that cus person found if questioned ef tody is to be determined under all fectively deprived of his freedom of case, facts of the and that “for one to movement, though interrogation even custody, be in required it not that he occurs in his own home. Orozco v. Tex be in handcuffs or even that he be ad as, 89 S.Ct. 22 L. express vised in terms that he is under Ed.2d arrest.” Territory Guam, Rosario v. of In Lowe supra, (9th F.2d 869 Judge carefully Carter in a considered opinion held for this court that In presently us, we would case before determine the custody by ap existence of Bekowies testified that at the time of plying Agent objective, questioning, reasonable man McLeod’s test he believed earlier formulated that he California was Su allowed preme in People Arnold, Court room. testimony apparently That Cal. hav 2d Cal.Rptr. 115, accepted by been Court,4 P.2d 515 the District considering In testimony Bekowies’ that Bekowies’ statements are relevant he believed himself belief, not free to leave we existence of his own not, do suggests, depart as the dissent question legal to the crucial objective from the of Lowe. standard whether that belief was reasonable. Agent whether, pres- to infer from Hixon’s un- owies us is only question for supra, his Lowe, to interfere with ence an intention objective test der We freedom movement. reasonable. was belief Bekowies’ agents Fourth, it was. requested conclude accompany with- conclusion, them to several areas have we reaching our beginning apartment. single At the by any cir- influenced not been got interrogation, Agent McLeod effect cumulative but cumstance to ask come out the Weil forth below set record. We of this go out he asked him to bedroom. Later led that have considerations various porch, he continued where talk- while our conclusion interrogation. McLeod, reasonably ing to we But to leave. himself not free lieved Fifth, of the bedroom search not hold —and emphasize dowe “in- McLeod had made necessarily think —that deed do that it be made. sisted” to Bekowies alone, to, standing we refer of the facts exactly why does not McLeod record show sufficient to demonstrate would be right on a he had a “insist” suspect believéd he was But search bedroom. custody. only aft- occurred that Bekowies’ consent suggests “insisted” at er McLeod had First, note that we very least that was not unreason- for the ar were armed with a warrant believe that he was able Bekowies to of Davidson entered rest when longer own house. master apartment. are When officers Bekowies’ looking fugitive, for a reason Sixth, Agents Ras McLeod and specific place, in a quite infor par certain their such an ar least one circuit considers in Bekowies’ mation Davidson equivalent rest warrant to be confident, apartment. from Mc search warrant. United States v. interrogation of beginning his of 1967).5 Kinney, (6th 379 F.2d 259 Cir. tell latter that suspect And it has held that a been ing truth. He therefore warned Bekr being pursuant home is whose searched provisions of federal owies a warrant to is in for Miranda statute, harboring 18 U.S.C. § purposes. People Wilson, Cal.App. v. 268 closely persistently. questioned him Cal.Rptr. 2d 74 131 Recognizing that is the test as we do Second, Agent McLeod at first suspect is a focus not whether that Bekowies was Davidson. While custody, suspicion he is in but whether persisted, McLeod’s belief Bekowies had per that close it is neverthless true ample expect course reason to that by accompanied questioning, a sistent would him room. let leave the warning provisions of a crimi as to the Third, had staked out Bek- belief nal an evident statute suspect owies’ interrogating and this fact was Agent Hixon, plac- may reasonably known to Bekowies. a lying, induce in sus is residence, longer ed in front of specifi- free no pect he is the belief that cally charged sig assuring go with one that no his to about business without through left or People the windows It Mer doors. nificant restraint. Cf. Cal.Rptr. cannot have chant, been Cal.App.2d unreasonable for 67 260 Sinee, found, opinion as the express trial court as to whether no 5. We subjectively believed in himself is accord not free to of this circuit the law leave, point. we have no occasion in this case the Sixth on that of when, ever, suspect to determine might only question if is the reason- a us before belief, objectively held find to be and we in cus- Bekowies’ ableness tody despite layman say imprudent a could and unrea- to it sonable belief that he federal what three free leave. judges have held. 14 properly States, been (1968); had Bekowies’ v. United Windsor (5th admitted. Cir. 389 F.2d 530 Finally, that at fact there alleged con The indictment interrogation, Bekowies conclusion of the spiracy Bekowies and Weil between custody. Had taken into

was indeed of 18 harbor U.S. Davidson violation agents simply him for harbor- arrested un C. sustain a 1071. To conviction § fugitive, we draw federal would statute, necessary to der it is the latter conduct, for at from their inference had “notice or show the defendant (Miranda problems they time knowledge of that a warrant aside) ample probable than cause. more fugi process for or been issued” has way But out of their instead went tive. It law that when hornbook (we reason hesitate some discover required to con a fact harboring say apart pretext), from the offense, knowledge vict for a substantive custody, charge, keeping for required conspir is also for convict finally petty him arrested acy to commit substantive offense. traffic offense. Ingram States, L.Ed.2d is true that this arrest occurred (1959); Ausmeier, United States interrogation. completion (2d 1945); Fulbright F.2d Cir. necessarily subsequent But arrest (8th United 91 F.2d 210 before, colors what went it is dif- say ficult indeed to that Bekowies was believing unreasonable in in cus- himself in this record from evidence tody when, out, it as turned his belief jury which the could have inferred was correct. knowledge of the Davidson arrest war- rant either Weil Bekowies was Since we hold that the District Agent testimony McLeod’s that he had failing erred Court to exclude state conspiracy shown it to them. Hence the ments made Mc begun cannot have en- before McLeod during interrogation, Leod the course of apartment. tered Bekowies’ is clear that a new trial will be re quired forward, on both the From that there and con spiracy is no counts.6 appro But communication be we think it priate point tween except Weil out this record Bekowies — Weil, there was the occasion insufficient when Mc evidence to sub direction, conspiracy mit the jury Leod’s asked count to Bekowies to come the even unpersuaded damning suggestion We are evidence as as that contained the improperly in admitting dissent in that the the error in statements admitted— Bekowies’ evidence statements that Bekowies had was lied harmless be- yond deliberately agents reasonable misled the not doubt. Bekowies —did strongly guilty jury’s could not have been influence the verdict. of the offense Chapman California, 18, of See Davidson until 386 “after notice 23-24, 824, or 87 S.Ct. 17 L.Ed.2d that 705 a warrant process (1967); Connecticut, Fahy or [had] been issued” 375 U.S. for David- 85, 86-87, 84 record, son. 18 TJ.S.C. § 1071. S.Ct. 11 L.Ed.2d On this (1963). the evidence Nor of such this a case where the notice was challenged reading merely McLeod’s evidence of cumula- the warrant Hence, overwhelmingly to Bekowies. if tive facts statements of established aliunde, California, suppressed, Harrington made to as in be slight there is 395 U.S. that 23 L.Ed.2d Bekowies’ (1969). govern- conduct connection with the We note that search exemplary suggest any was other than brief does not ment’s challenge outstanding harmless, he had notice error was nor after of appellant’s opening evidence, arrest warrant. Absent statement such required any Bekowies’ patible brief other that a new trial if statements are as com- guilt. of with the statements excluded. innocence as be with any event, it is hard to believe that recognize Davidson’s pos- he didn’t ment that Nor was the bedroom. out him; (2) anything picture about or know any communication such infer sible to having that Davidson his statement two, F.B.I. tween had wife period. there and that his [Bekowies’] apartment whole been do.”; flu; (3) I had “I did what be communication Without bit.”; (5) (4) “Everyone must do his however, there tween Weil I “Well, sorry, [Davidson]. I’m Jim agreement between no been could have 1969; February tried,” all made on course, agreement, Without them. say? (6) there more is “What Ingram v. conspiracy. can be no there (Rep.Tr. already I did.” did what I States, supra; Unit Pereira v. United from the record clear States, 74 S.Ct. ed 347 U.S. (6) after statement occurred L.Ed. February 18 on on had been arrested Reversed. indictment, charge to the led which warning, had given Miranda valid Judge CARTER, Circuit M. JAMES (4) (3), agreed to talk. Statements (dissenting): (5) imme- made in the were convictions majority reverses on diately The arrest of charge (1) grounds. evi- 14, 1969, Insufficient February on two on the traffic conspiracy con- support response dence to not made and were viction, (2) volunteer- interrogation Bekowies’ statements police were but police impermissible assuming product Therefore, valid- ed. even interrogation custody argument, have been majority’s ity and should majority agree on should admitted. four statements I none of the last however, cannot, point. excluded, ac- the first I all would been have my on cept brethren the conclusion on a retrial. admissible the second. majority dis- “The The twice states admissibility accepted state- Bekowies’ trict court seems thoroughly thought police stating con- testimony, to the that he ments owies’ sup- 12; p. [Opinion court at the trial sidered he couldn’t leave.” thinking hearing. pression and three p. Since 12]. investigating testified. under Bekowies is admissible judge “certainly objective standard, situ- no demonstrated found as opinion February hereafter, place ation no in the involved there is [was] * * * Apparently speculation court for a as to whether [Bekowies] leave, testimony accepted but as to his that he couldn’t he Bekowies’ * * * thoughts I would reasonable reason and beliefs. say squarely this case falls within majority the convic- But reverses except I Lowe v. United relying tion on Bekowies’ gets Rely- don’t think it that far.” even recognize picture Davidson’s didn’t legal on the same standard and evi- anything him. These know about court, dence considered the trial but shortly statements were made after opportunity without heard the to have owies the had been called from bedroom witnesses, majority and observed by Jeffrey police The first es- Weil. custody concludes that was in Bekowies David- tablished that Bekowies wasn’t significantly liberty. deprived or of his son, then told of for David- the warrant agree. I cannot provisions son the fed- and read the of harboring majority specify eral Bekowies de- statute. The does not which As nied of Davidson. statements of Bekowies should have been time, majority that a would insist excluded the trial court. In his brief reasonable man would assumed have summarized incrimi- the six subject in-custody nating in- to Bekowies was statements he felt should have terrogation. (l)hisstate- They been excluded. were: finding language should used would concern court consider the court’s The trial Attorney, (2), Deputy (1) since the District and statements surroundings, (3), physical clearly “the extent to that statements shows record (6) (5) which the (4) and authorities confronted defend- volunteered and were February guilt, pres- ant with her arrest on after was made defendant, charges sures exerted to detain and which lead on the might any other Miranda warn- circumstances which dictment after a full and ing. have defendant to believe found that led court also The trial freely.” that she could not Cal. reason had no reasonable Cal.Rptr. custody 2d at at 426 P.2d he was [Emphasis squarely 522. added]. fell Lowe case within (9 1969), 407 F.2d

States See Criminal Law and the Constitu- finding square that Bekowies This was a Commentaries, pub- tion —Sources “custody de- was not or otherwise Continuing lished the Institute significant prived of his freedom in Legal Education, Arbor, Michigan, Ann way.” Miranda v. United by Yale Kamisar. Ch. 4 thereof deals 436, 444, 1602, 1612, 16 86 S.Ct. Interrogation with “Custodial Within L.Ed.2d ma- We think the Meaning page of Miranda.” At jority summary upset in error in this alternatives, Kamisar four lists finding. of a trial court’s fact (4) chooses number : addition, person In “What determines facts showed that whether being questioned custody’ (1) is ‘in Davidson was in 'Bek- ? discovered subjective apartment, The ques- owies’ called intention of the officers tioning headquarters any charges person officer ascertain if hold the pending (2) against degree to arrest him? investigation which the found he was wanted on a warrant for has ‘focused’ jay walking. person or, We think the fol- variation of the proper police approach, practice same lowed whether in check- or not police ‘probable to see whether warrants cause’ to are out- arrest standing person? (3) suspect. pub- There is a The lief person lic apprehension signifi- interest of of- that he is fenders, cantly deprived (4) even traffic violators. How- freedom? ever, majority belief person, states “But as ‘a instead rea- man,’ sonable way sig- that his [the went out of their officers] freedom is nificantly impaired? (we to discover some reason hesitate to submitted say pretext) approach apart (4) from the should be control- charge ling.” keeping custody, Bekowies in finally arrested him petty for a traf- People Rodney (Anonymous), P. fic [Opinion p. offense.” Such 14]. 1, 9, 21 N.Y.2d 225, 233, 286 N.Y.S.2d concern no issue the case 233 N.E.2d (1967), the New place and have no opinion in an of this York Appeals per Court of Keating, J. court. held that a subjected defendant was not majority, although interrogation” purporting “custodial and that Lowe, supra follow 1391], warnings Miranda [407 F.2d ac- need not have been tually departed given, relying completely. from it heavily People Lowe Ar- lays nold, objective down an supra, particular language standard for de- termining therein, (pp. 1396-1397) to-wit, “custody occurs if subject particularly considered physically deprived intent of his free- officer. objective any significant Such an dom in way standard or is led to equally would believe, cover the as person, intent of the reasonable de- that he People fendant. Arnold, deprived,” so v. quoting People 66 Cal.2d from Ar v. Cal.Rptr. nold, supra, P.2d 66 Cal.2d 438 at Cal. (1967) stated that on Rptr. retrial [Emphasis the trial 426 P.2d 515 add- Lowe, supra. Hazel, in In- officer citing People 252 Cal. tent the ed]; and Lowe, Ar- applying rule of stead of the 412, 442, Cal.Rptr. to App.2d majority Rodney, has nold and the Keating Judge wrote: same the effect. clearly departed therefrom. applied Califor- test “This [the committed, Assuming I am was error hold which we the test nia is courts] it harmless. U.S.C. § convinced was gives reasonable. to the most be was con- under which purpose Miranda of the to effect victed, provides: solely dependent rules; either it is not any harbors or conceals “Whoever self-serving declarations of person or a warrant whose arrest police or defendant nor process issued under has been place upon police the it bur- does any provisions of law of the United anticipating or the frailties discovery den of prevent so as to idiosyncracies every person whom or arrest, notice and after ” * * * they question process or that a warrant fact apprehension for the has been issued objective think standard means We an * * * person, shall fined of such any thoughts objective to both as * * imprisoned officer and of the defendant. When we undisputed Davidson was a It is that majority opinion look we see that at fugitive warrant, that an arrest from testimony replete it is to with references bed, was under Bekowies’ he discovered “felt” or of what the defendant Bekowies that Davidson Bekowies knew say- quoted as Bekowies is “believed.” fugitive Bek- from warrant. long “he felt ‘as as possible would defense owies’ me, stay questions I was to ask ” know have been that didn’t ; felt like answer them’ that he “never being in his Davidson was harbored [Majority opinion p. I should leave.” rebutting apartment. Yet the evidence 11]. Thereafter court dismissed the overwhelming. It re- this contention is Lowe, citing supra, rule in and after (1) bed- veals: Bekowies was People Arnold, supra, citing was discovered Davidson room which People (Anonymous), Rodney a Cf. P. shortly be- minutes fifteen least supra, purported apply rule. (2) Beko- found. fore Davidson was Again quoted saying Bekowies is as “he top the bed at wife was on wies’ believed that he was not allowed (3) Just found. Davidson [Majority 12], opinion, p. the room” apprehension, Davidson after Although couching ap- its conclusion in discussing heard Bekowies were parent objective reliance stand- automobile, disposition of Davidson’s “ ** * ard, to-wit Bekowies while apartment, Da- parked outside talking Agent McLeod, reasonably apart- in the which were vidson’s clothes leave,” lieved himself not free “Everyone (4) stated: ment. apparent majority relied exten- (5) over Bekowies came must do his bit.” sively thoughts on Bekowies’ said, “Well, sorry, I’m to Davidson expressions, merely Footnote #4 custody, (6) four I Jim. tried.” compounds the error. Davidson, days arrest of commented, more owies “What Certainly application not an already say? what I I did there to objective “an determining standard for did.” custody.” to be determined is did the as a reasonable am see how admission man I unable to defendant or did response statements of Bekowies’ defendant interrogation that he was police But the leave. free serving significance self anything to the defend- added overwhelming proving ant should not be admissible on this is- hiding unexpressed knowingly sue David- more than prevent

son to from his arrest. Taken perspective, helped the statements one by asserting his contention Davidson, nothing knew sum, that Davidson had been concealed knowledge. unfa- without his Viewed vorably his statements lying protect Da-

dicated that he was vidson. conclusion can This firmly drawn, however, from the over- whelming independent actively owies knew Davidson and was concealing him. Bekowies’ answers significant

may have been in determin- conspiracy existence of a

tween Bekowies and roommate Weil. agree conspiracy count But we

should be reversed. therefor harboring longer in the case. As to the charge, beyond we are a rea- convinced doubt, any sonable Miranda error California, Chapman harmless. 229, 11 84 S.Ct. L.Ed.2d 171 conspiracy The conviction under count should be The convic- reversed. tion under count should be sustained. America,

UNITED STATES Appellee, LILES, Appellant. John Richard No. 25793. Appeals, United States Court Ninth Circuit.

Sept.

Case Details

Case Name: United States v. Joel P. Bekowies

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 29, 1970

Citation: 432 F.2d 8

Docket Number: 25407_1

Court Abbreviation: 9th Cir.