United States v. Richard A. Schmidt

1057 Moreover, hardly C., propo it is a novel T. supra, 339 F.2d at 510 citing 3 K. agency Davis, that an administrative can sition Administrative Law Treatise 20.03 § investigatory subpoena powers ed.). utilize its grant a federal court can relief to and that Able raises for the first time on doing prior conclusive aid it in so without a appeal the issue whether inspections OSHA statutory showing coverage. Okla See are subject searches to the reasonableness Publishing Walling, Press Co. v. 327 homa. requirements of the Fourth Amendment. 186, 494, (1946); L.Ed. 614 Specifically argues it the Secretary’s Corp. Perkins, Endicott-Johnson inspectors must first obtain a search war (1943); 87 L.Ed. 424 Fed probable rant on cause before they can de Seattle, eral Maritime Comm’n v. Port of mand access to premises. Abie’s (9th 1975). F.2d 431 Cir. point At no in the proceedings below was agency Generally the should make the Fourth Amendment issue raised. jurisdic the initial determination of its own objection Able’s sole inspections, un tion. State Cal. ex rel. Christensen v. F. til it drafted its brief for this appeal, was C., (9th 1977). T. 549 F.2d 1321 Cir. Pri it had not been proven to be an em jurisdiction questions mary to determine ployer affecting prior commerce to the at coverage" lodged is in the statutorily OSHA tempts to compel obedience to the statute. organ hearing appeals created of OSHA it Because never below, raised the issue we citations, Occupational violation Safety hold that its Fourth Amendment claim was and Health Review Commission. Matter of timely asserted and was waived for Park, (3rd Restland Memorial 540 F.2d 626 purposes of this appeal. Usery v. Godfrey 1976). question Cir. Able should raise Supply Service, & Brake (8th 545 F.2d 52 statutory coverage in an administrative 1976). Cir. Accordingly, we do not address appeal contesting validity cita the search and seizure issue. may tion it receive as result of OSHA The judgment of the district court is af- inspections. firmed.

Before a federal court reviews the

question jurisdiction, judi of OSHA sound policy requires

cial that Able exhaust its

administrative remedies. Parisi v. David

son, L.Ed.2d

(1972); State of Cal. ex rel. Christensen v. C., supra; F. T. Am. Fed. of Employ Gov’t America, UNITED STATES of ees, Dunn, (9th Local 1668 v. 561 F.2d 1310 Plaintiff-Appellee, 1977). Cir. See also Lone Star Cement C., Corp. v. F. T. (9th 339 F.2d 505 Cir. SCHMIDT, Richard A. 1964). Defendant-Appellant. Application of the exhaustion of remedies No. 77-1334. is appropriate doctrine here. Able would exposed not be to irreparable injury by a Appeals, States Court of requirement it first contest in an ad Ninth Circuit. ministrative forum whether is within Feb. 1978. appears OSHA’s reach. There to be little As Rehearing Amended on Denial of jurisdiction,2 doubt about and the adminis Rehearing April En Banc agency particularly trative competent question statutory coverage. consider of California ex rel. Christensen v.

State F. C., supra; Corp.

T. Lone Cement v. F. Star previously recognized Occupational Safety 2. We have that when tent. Godwin v. Congress Commission, OSHA it enacted intended to exercise Review Health powers (9th 1976). its commerce clause the fullest ex- Brueker, Wash., Seattle, for

Thomas H. S. defendant-appellant. Currie, Atty., U. S. Taco-

Donald M. Asst. Wash., ma, plaintiff-appellee. When he surfaced Schmidt was spotted by Peruvian military guards. Since he was in a area guards suspected restricted him espionage or sabotage and after a HUFSTEDLER, CARTER and Before apprehended chase Although him. the de- SMITH,* Judges, Circuit District parture of the Santa Mercedes delayed was Judge. shortly because of the commotion in the harbor, ship received clearance and left CARTER, Judge: M. Circuit JAMES on route to Tacoma before the Peruvian appeal by is an Richard A. This Schmidt military could search its hull. of his conviction under a two count indict- interrogated Schmidt was immediately by importation conspiracy ment for to im- the Peruvian navy intelligence police. He port cocaine into the United States in viola- had no clothes because he had worn only his 963, respective- tion of 21 952 and U.S.C. §§ wetsuit to dive. He given was a blanket. ly. right jury waived his to a Schmidt then Schmidt told the authorities that Com- following trial was found the district Petrozzi, mander a Peruvian military offi-

judge guilty to be on both counts. He was cer, could vouch for him and the command- years imprisonment sentenced to five on er was summoned. Upon arrival Com- count, each to run sentences concurrent- mander Petrozzi offered his assistance to ly- and arranged Schmidt for Schmidt to be grounds upon states three Schmidt which escorted to find his clothes on the beach he contends his conviction should be re- where he had left them. First, versed. statements made to DEA At the beach the authorities discovered agents in Peru allegedly improperly not only clothing, Schmidt’s but also James admitted because were the result of Hooker hiding who was in the rocks nearby. coercive govern- conduct the Peruvian Hooker had taken Schmidt to the restricted Second, ment. area of Callao Harbor earlier that evening presented at trial is claimed be the inad- in a rubber boat. When being Schmidt was product missible of the coerced statements. chased guards the harbor Hooker was Third, the United States is al- observed to flee the harbor in the rubber leged prevented to have the defense from boat. Apparently he waiting was investigating the crime in Peru. None of rocks to see Schmidt would return. these contentions is meritorious. We af- Hooker custody. was taken into firm. clothing disappeared unexplainedly, thought by Schmidt to be stolen some of I. FACTS guards. given He was other clothes the Appellant Richard A. Schmidt and James next day. conspired illegally import Hooker ap A search of the area near where Hooker proximately pounds five of cocaine from caught was revealed a car contained, which Lima, Tacoma, Washington. Peru to Pur among items, other Hooker’s passport, some evening plan, suant to this on the of Janu tubing, rubber a motor and a rubber boat. ary Schmidt scuba-dived under The boat was later determined to have been freighter neath the “Santa Mercedes” purchased by Richard Seattle, Schmidt in Harbor, which was moored the Callao December, Washington under an Lima, Peru. He attached a metal canister assumed name. containing the rolling cocaine to the chock ship. ship leaving important was Other physical evidence was evening for Tacoma. uncovered the Peruvian authorities dur-

* Smith, E. Judge, Montana, Hon. Russell Chief United sitting by States District District of des- ignation. night, attempting to corroborate the state- In Hooker’s investigation. James ing their ments he had made to the naval officials. gaskets with metal canister apartment a slapped and hit for Again Schmidt top its which sealed plate plastic and a clear cooperate, but refusing continued in- apartment of A search were found. seeing attorney representa- or a sist on Hooker, father, un- Cecil James Hooker’s Although his Embassy. tive of the U.S. passport.1 Richard Schmidt’s covered inconclusive, testimony apparently later interrogated by abusively of his earlier admis- repeated some For naval authorities. sions, fully refused to corroborate the but interrogations at resisted few Nevertheless, coerced confession. based refusing and hit for slapped he was information extracted mostly however, Finally, af- questions.2 to answer navy, Peruvian the PIP by the which he interrogation at nighttime a ter up complete a statement and made typed repeatedly and hit and slapped again was sign refused to sign it. Schmidt Schmidt water, a bucket head dunked had his dunking session. he feared another until in the participation his confessed Schmidt signature then he withheld his until Even Throughout smuggling conspiracy. cocaine permitted the words append was to he to asked see ei- ordeal Schmidt the entire signature” to two of the three “forced of the attorney representative or an ther of the document.3 pages refused. Once Embassy, but was American during his confine- January On returned to Schmidt was he had confessed he headquarters but before ment at PIP ill, cell, a few he became but within his statement, sign the forced to had been eat, to a transferred to and was unable two American Schmidt was visited a week had for treatment. About hospital Drug Enforcement Adminis- agents of the capture. elapsed since Schmidt’s attempt- were (DEA). The tration custody was hospital over Schmidt At the attempt to whether ing to ascertain divi- conveyed by navy to the narcotics into the United States had smuggle cocaine Investigative Police sion any still undis- and whether successful been to attempted (PIP). Officials of the PIP They involved. persons had been closed from Schmidt a second confession rights obtain of his Miranda Schmidt first advised hospital, but he was still while he understood. Then he said a two- cooperate. to After participation Schmidt refused his own admitted Schmidt hospital recovery period implicate any at the to day conspiracy but refused PIP head- returned to the United prison removed to until he was was others quarters. States. subsequent were meetings or two frequently One

The PIP interviewed Schmidt the DEA agents of and week, day held between at all times of over the next stopped argu- page he was a violent second to his son Hooker went to Peru assist 1. Cecil hearing The Peruvian authorities were of the While in Lima ment ensued. arrests. suspected assisting escape outraged from with was threatened Schmidt prison nine signing signa- and was confined for about PIP “forced abuse he insisted During days. Hooker his incarceration Cecil argued, reiterating his claimed ture”. Schmidt they apartment to his at which PIP officers led attorney. right He to an testified: passport. Richard Schmidt’s found they I . . knew that had had about as except get I could from them much as imprisonment night of second his On the treatment, just dunking and I told them I’m escape nearly at- successful Schmidt made sign, you going to I care what do to don’t navy tempt. confines He sneaked free of me, sign going it. ocean, I’m not recap- way to but and made * * * * * * attempting to swim to a tuna boat tured while beating re- of the he received see, offshore. Part now, you “Okay, allowed me to incident. sulted signature' sign page last because I ‘forced simply going sign, said wasn’t I wasn’t signature” signed on the “forced 3. Schmidt ” sign going . R.T. 274-75. page it was detect- of the document before begun write it on the he had After ed. Schmidt, meetings but at these also the United States officials stationed in willing Peru, to discuss even his own contending was less the officials of both only further His admission involvement. countries were seeking to frustrate his in- placing was criticized for when he occurred vestigation. Ultimately Steinborn returned dangerous part ship. the canister on having been Seattle unable to obtain he had not intended expressed that depositions. endanger anyone by doing so. Schmidt moved to dismiss the indictment Mercedes arrived on schedule The Santa because the allegedly in- Tacoma, January 23, Washington on terfered with the defense investigation in a metal cylinder 1976. DEA divers found Peru. He also moved suppress all state- to the one discovered in Hooker’s identical ments, written, both oral and made to ei- apartment rolling in Peru attached to the ther Peruvian or American authorities in cylinder’s ship. contents chock Peru. pretrial After a hearing the trial analyzed were and found to contain 85 court found the United States representa- (approximately kilograms 2.4 or 5.3 ounces tives had not interfered with the investiga- pounds) pure of 70% cocaine with an esti- tion. The oral and written statements $340,000. mated street value of over The made to the Peruvian naval authorities and plastic bag in a wrapped cocaine the PIP suppressed involuntary, as surgical tubing with like that found sealed but Schmidt’s statements to the American in Hooker’s car at the beach in Peru. agents voluntary were found and ad- 5, 1976, February escaped On mitted. prison in Peru. Four later At trial Schmidt denied making any in- charges were filed him in the Unit- criminating admissions to the DEA in Peru. He was arrested in subsequently ed States. However, the trial judge made a factual on June Seattle finding that the admissions were made and trial, prior One week to counsel for reaffirmed his determination they attorney, Jeffrey sent an Stein- voluntary. physical pro- evidence born, investigate the case and Lima by investigation duced the of the Peruvian depositions. take Steinborn intended de- officials was admitted over objection the pose military personnel all the in who Peru that was tainted fruit of the illegal con- participated capture had or interro- fession. by Schmidt was convicted the he gation Schmidt. In addition intended sitting court a jury. without depose lawyers several Peruvian and reverend who knew of conditions in Peruvi- II. ISSUES jails. Lima,

Upon arrival in in- reasonably Steinborn was A. Could the trial court con- by what he called the “state timidated clude that Schmidt’s statements in Peru.4 existing marshal law” He dis- American DEA in Peru were volun- officials, only trusted not but tary? freeways, bridges,

4. Steinborn learned of the conditions in Peru on the with automatic Embassy per- weapons, both from the U.S. and from his they begin and at 1:00 o’clock explained curfew, sonal observations. He his concerns exactly night, at 1:00 o’clock at and being by to be after warned cautious the Con- going the rifles start off. You can hear the sul General: gunshots Sheraton, from the and about 1:15 tanks, well, this, really they really pretty frightened per- “I was are armored it, quite partly by carriers, they swiveling alarmed what sonnel don’t he said have the way it, partly by partly them, and he said and turret with the cannons on but my things observations of the rolling condition metal treaded tanks start down the Peru, they streets, which was that have a really quite sort of a intimidating and it’s military government down there and you you see —if are from America law, have declared a state of marshal which thing haven’t seen sort of before.” R.T. day all means that hours of the there are 121-22. everywhere streets, soldiers on all the on the as “. the inferences contin B. Was practices product of the uing as the effect coercive inadmissible crime by the Peruvi- may fairly confession obtained be drawn from the sur coerced Lisenba v. Cali ans? rounding circumstances. fornia, 219, 240, finding that the court’s the trial Was C. The voluntariness or involun L.Ed. 166. in Peru did not confession is determined tariness of a investigation defense with the interfere accused, a conclusion as whether clearly erroneous? confesses, possession

the time III. DISCUSSION deny ‘mental to confess or freedom’ suspected participation in a crime.” the Statements Admissibility of A. Oklahoma, 596, 602, Lyons v. Agents. to DEA (1944). 88 L.Ed. 1481 inad- is claimed to be a statement When an ad hoc By necessity requires this test coerced product prior of a as the missible totality determination based on the solely one of volun- issue is confession particular an admission circumstances of each case. The fact tariness. itself automatical- does not once coerced is primarily This determination The Su- any future admissions. ly taint Brulay responsibility of the trial court. explained: preme Court course, has once an accused “Of denied, cert. 1967), bag by confessing, the cat out of the let (1967). Although 19 L.Ed.2d 478 on inducement, he is matter what no appeal closely we will scrutinize the find psychological thereafter free never juries ings judges regarding of trial having disadvantages of practical ultimate issue of voluntariness confes cat get never back He can confessed. sions, disput their decisions the basis of good. out The secret is bag. be upheld ed facts must unless are sense, always a a later confession such In Curtis, United States v. clearly erroneous. as fruit the first. may upon looked be United 1153, (9th 1977); 562 F.2d 1154 Cir. gone never so far as this court has But Cluchette, 465 749, (9th States v. F.2d 754 a under cir- making confession hold that 1972). Cir. use, preclude per- its which cumstances mak- the confessor from disables petually we must determine whether Specifically those conditions ing one after a usable reasonably the trial court could conclude v. United States have been removed.” given treatment oppressive that the 1394, 532, 540-41, 67 Bayer, S.Ct. by the Peruvian authorities did not Schmidt (1946). 91 L.Ed. 1654 willingness subsequent cause his to make Vincent, Tanner v. 541 F.2d 936-37 See to the American DEA limited admissions denied, 97 cert. 1976), 429 (2 Cir. this perspective From is evident United (1977); .2d 782 50 L.Ed different inferences can be drawn fair- that Toral, (9 Cir. v. States F.2d 896 ly judge’s facts and the trial deci- from the Howard, (1 v. Knott 1976); 511 F.2d to infer that the admissions sion Shea, United States 1975); 436 F.2d Cir. controlling. voluntary DEA were Knight, 1970); (9 denied, cert. (2 1968), Furthermore, F.2d 971 Cir. our review the rec 23 L.Ed.2d us the trial court's infer ord convinces States, (1969); Cotton v. statement ence was correct. Schmidt’s 1967). 385, 393 Cir. agents was the of his own the DEA result Similarly, free will. the existence of the focus on inquiry must Accordingly the itself did not cause Schmidt to confession which caused the conditions whether forgo the assertion his constitutional also caused admission inadmissible rights. depends on This later admission. The defendant would have us conclude when Schmidt being forced to sign the that because the DEA and the PIP occa- papers, he still asserted his bywill including shared sionally information on cases of im- the words signature”. “forced Speaking of both portance to and because the United event, this Schmidt trial, testified given has financial assistance to States “. .1 was still there and I was still— through PIP the DEA to assist in the con- still had the capacity to resist.” R.T. 274. drug trol of traffic to the United This record of continual defiance belies the investigation “joint” this case awas notion that Schmidt had lost his will to operation. transcript trial does not resist. bear contention out. it is Rather evi- More importantly, however, the circum- dent from the record that each agency —the stances of the DEA interrogation PIP —undertook essentially Schmidt show that neither the earlier coer- separate investigations. The inter- minimal cive treatment he received from the Peruvi- action that support did occur cannot an nor the existence of the contention conduct of the PIP prior confession itself can be con- properly should be attributed to the American DEA sidered the cause of his choice to reveal to agency on an rationale. the Americans the general details of his is shown by Schmidt to be record part in the criminal scheme. testi- extremely strong-willed Upon individual. fied at trial were honest foreign his capture power and his and friendly and that he was not intimidat- deplorable incarceration in conditions he ed them. R.T. 290-304. Although he staged a nearly successful escape attempt denied making any incriminating admis- day. Subjected within one very abusive sions, Schmidt admitted that any state- Peruvians,

treatment con- ments he did make were not coerced.5 R.T. respond refused to tinually questions and rights his demanded under law. American A Only coercive, all-night critical interroga- distinction between the condi- gave tions tion did he which then, session confess. rise to Even the coerced confes- when sion and faced with renewed those to elicit in which attempts Schmidt chose to incriminating talk statements to the DEA a different relates to the sovereign arm of the Peruvian law government, controlled interrogation. In repeat refused interrogations confession. Not earlier until Schmidt was sub- faced with what he thought ject to the protection or protection lack of exposure second to the dunking provided treatment by Peruvian law. In the latter agree sign did typed interrogation confession. by the DEA pro- Schmidt was At the conclusion of ordeal, this by entire tected law, American specifically the 5. Schmidt testified: through, been I what knew that the other people fun, you do and did do for by Did feel for “Q intimidated Chuck nothing else.” agents]? of the [One Hamm DEA NOON LUNCH “A No. BREAK * * * you * Did * by feel * “Q intimidated Mike Gar- agents]? [another land of the DEA you indicated, Schmidt, I just “Q think Mr. “A No. you before lunch that didn’t feel intimidated you by Boggs Did feel intimidated “Q Bill by any agents the DEA they when agents]? [another DEA interviewing you, isn’t that true? Only by size, by appearance “A his not his intimidated, “A I said that I did feel and I manner, Oh, get or his no. he did called —he explained degree. through I had been point, me some names and so forth at one explained tremendous intimidation and I to but didn’t I think he would —I it wasn’t mean you what I intimidation felt from them. severely —I I mean had been so intimidated any You couldn’t “Q characterize state- Boggs any I that wasn’t worried about in you gave ments agents to the DEA as calling any name or of this business about statements, you? coerced could give night him, although me a in the cell with No, gave “A I those statements.” 303- R.T. I happen. wouldn’t like to have had it It 315. reality as close to wasn’t I what had on the signature prepared forced statement recog- Schmidt Constitution. States any in Ameri- by the PIP were inadmissible he At when trial this distinction. nized legal training His prosecution. can he interrogation DEA testified about impute to knowl- adequate than more admitted: warnings he edge him. The Miranda to time, somebody .1 some “. knew oí carry implicit also statement received going to be United States from the this fact. going be they are and talking me Finally, own conduct at the I had Schmidt’s questions me same asking interrogation suggests voluntari- DEA now, I twelve been asked give his decision to a statement. ness of to say I want I—that didn’t what

knew part in willingly discussing After his own although I anybody, and anything he assert his Miran- conspiracy chose to saying anything stop couldn’t implicate rights da and refused to further the methods because Peruvians any persons other until he was returned to used, figured with the same—the I subsequent meetings At United States. be done to me thing couldn’t same refused even to discuss his own Schmidt .” anybody from the involvement in the crime. added). (Emphasis R.T. 558-59 not lost his will to Schmidt had resist. subjected to he would not be knew He not fear coercive treatment did treatment oppressive agents. He well American DEA knew his rights to remain silent and to constitutional Furthermore, knew he had attorney present questioning. an at have to talk to the right refuse constitutional his point He even chose one assert attor right he had the an Americans prior right to remain silent. He knew his permitted them to interro before he ney signature the forced confession and could for two had been trained gate him. He not be him an American used American law schools.6 years competent prosecution. totality of the circum- training took at least one During that strongly support the trial court’s stances Additionally, the criminal law. course on finding that limited statement to Schmidt’s rights his him of Miranda informed freely the DEA was made. It was not the they met with him.7 each time detail product the earlier abusive treatment of his Miranda he was well aware That or of the coerced re attested rights is further confession itself. his Peruvian attempts to convince peated rights him these as to afford interrogators Admissibility Physical Evi- B. American citizen. dence. Also, prior government’s proof confession knew at trial included boat, tubing surgical the rubber and Hook- authorities and to the Peruvian naval completed you “If cannot afford or otherwise obtain a defendant In 1966 and 1967 the one, lawyer lawyer you years law He attended two want will of law school. two University Diego appointed you by Magistrate and Has- of San schools —the tings you any ques- Francisco. law school in San court will ask and we appointed. until he has been tions by agent Hamm: you was told “If decide to or answer now with with- lawyer, you right stop any you questions, still out a have the ‘Before we ask “. any questioning stop ques- your rights. my duty you the time or the Do to advise it’s consulting right tioning purpose you you a for the law- understand that have However, right yer. you may silent? waive the remain anything you you right your that that “Do understand advice counsel and to remain you against say you may questions in court and will be used or can silent and answer proceedings? consulting or other a statement without law- make ” you you understand have yer, you “Do that R.T. 74-75. desire.’ you right lawyer ask to a before we to talk rights. stated he understood these you any questions have him with and to during questioning? beach, passport in the ear on the Petrozzi, er’s found Commander who interceded on metal canister found in James Hooker’s Schmidt’s help behalf to him find his cloth passport Richard apartment, Schmidt’s ing at the beach. There navy police apartment, in Cecil Hooker’s found and the found Hooker and the car. Schmidt had canister with the cocaine metal found un voluntarily led police to this location to derneath the Santa Mercedes in Tacoma. find his clothing.8 See generally Agius v. recognizes physical evidence States, 413 F.2d 915, 919-20 (5 Cir. suppressed will not be because of illegal denied, 1969), cert. 90 S.Ct. foreign by conduct officials which violates 1116,25 (1970) L.Ed.2d 399 (Suspect willing the Fourth Amendment. Stonehill v. Unit ly police led to his car where incriminating ed 1968), 742-44 Cir. plain view.). evidence was in This evidence denied, cert. 89 S.Ct. 23 was discovered at least day an entire before denied, reh. (1969), L.Ed.2d 747 any incriminating statements were forced (1969). 24 L.Ed.2d 125 from Schmidt. Rather, physical he contends the Likewise, the search of apart product was a of his coerced confession ments of James and Cecil Hooker cannot be making its introduction at trial a violation any tied to statements coerced from of his Fifth Amendment right self- Schmidt. The record does not explain what incrimination. actually motivated these searches. This depends (1) on argument This a legal alone is fatal to Schmidt’s contention, par showing exclusionary rule under ticularly since the searches can be easily applies the Fifth Amendment to physical explained without reference to any of product evidence which of statements Schmidt’s statements. Once James Hooker illegally officials, foreign obtained was discovered at the beach it would be (2) a factual showing disputed normal investigative procedure to search his product evidence was apartment. Hooker’s father was suspected coerced legal statements. of assisting attempted escape from the apparently issue is one of impression prison. PIP The search of his apartment presents interesting question suspicion, related not Schmidt’s applicability exclusionary rule in statements. Fifth involving Amendment cases illegal However, by foreign conduct officials. we Finally, the search of the Santa do not resolve that issue because the physi- Mercedes was the product of Schmidt’s dispute cal evidence in has not been shown freely given statements to the DEA. product any illegally to be the coerced Schmidt voluntarily had disclosed smug statements made Richard Schmidt. gling scheme to the American seven boat, The rubber before the surgical tubing and Santa Mercedes arrived in passport were discovered in the car at the United States. It was this disclosure beach before Schmidt had been subjected to which was relayed to Seattle and which before he made abusive treatment and eventuated in the search of the hull of the statements. appre Mercedes, coerced Soon after his Santa not Schmidt’s coerced dis friend, hension Schmidt was assisted closures to the Peruvian authorities.9 police 8. Schmidt’s decision to take the canister cocaine would have been discovered clothing involuntary of his independent location is not made investigative procedures. subsequently the fact that his clothes were diving directly Schmidt had been seen beneath misplaced, either or confiscated stolen. The police the Santa Mercedes in Lima. The record shows that due to Commander suspected Petroz- sabotage both countries either police zi’s efforts Schmidt’s behalf the drug trafficking. Since the Santa Mercedes left good faith effort to find his clothes for him. the Callao Harbor before a search of its hull Peru, organized certainly could be it almost upon 9. Even if the of search the hull of the Santa would have been searched arrival in Ta- evidence, Mercedes were considered the result of one coma. If otherwise inadmissible un- statements, resulting exclusionary rule, coerced der the would have been 1066 Welp, (9 was United States v. 469 688 F.2d Cir. evidence disputed The Page, 81, United States 1972); v. 302 F.2d the statements independently

obtained Green v. 1962) (en banc). See (9 au- 84-85 Cir. from Schmidt coerced States, 408, 411, was not United U.S.App.D.C. 128 at trial Its thorities. introduction v. United Jackson 949, (1967); 952 389 F.2d error. 324, 326-327, States, U.S.App.D.C. 122 353 Government United States Alleged See also 862, (1965). Wright, C. F.2d 864-65 Procedure; Inves- the Defense with Interference & Criminal Federal Practice tigation. finding ‘clearly 18. “A is errone- 375 at § although is when there evidence to ous’ motion to pretrial his conjunction with In it, reviewing court on the entire support argued the indict- also suppress is with the definite and firm left S. because U. dismissed should be ment a mistake has been commit- conviction that with his interfered in Peru representatives Co., Gypsum v. U. United States S. ted.” hear- lengthy pretrial After a investigator. 395, 525, 542, 364, 68 92 L.Ed. 333 U.S. S.Ct. finding specific made judge trial ing the (1947). 746 in Peru the United States that investi- the defense with not interfere "did pretrial The evidence adduced at the assertion appeal defendant’s On gation.10 trial, hearing particularly and the testi were ob- investigator’s efforts his that investigator, Jeffrey mony of the defense a chal- to be must be construed structed Steinborn, adequate sup more than reveals of the evidence sufficiency lenge of the findings port for the trial court. finding. court’s the trial support Consul General Steinborn contends U.S. right depositions. take him the conflicting facts or denied The resolution was second admits this information pretrial hearing But he conflicting at inferences embassy lower official and primarily is hand from a responsibility another he receiving this information re Findings fact judge. for the trial one he to whom should proceed ceived instructions as pretrial trial court for his the dates and times contact set clearly erroneous. unless are conclusive ings States, agent DEA who 487, depositions. intended v. United 373 U.S. Campbell Attorney 1356, (1962); represent U.S. L.Ed.2d 501 493, 10 83 S.Ct. 798, and offered his Hart, met Steinborn v. depositions F.2d 801-02 States 546 United assistance, depositions were denied, 429 was told but no 1976) (en banc) cert. (9 Cir. 1155, (1977); yet scheduled. L.Ed.2d 571 1120, 51 97 S.Ct. Pitler, (1964). see But “Fruit of the Poison independently, 17 it not be ex- need

discovered Tree,” 579, (1968). States, Wong 627-30 56 Cal.L.Rev. Sun v. United 371 U.S. ous cluded. 407, (1963); 471, 487-88, 441 9 L.Ed.2d 83 S.Ct. 963, Jackson, 448 (9 970 States v. F.2d held: court denied, v.Willis Unit 1971), sub nom. cert. Cir. I do find the United States “. 970, States, 924, 30 92 S.Ct. ed 405 U.S. Embassy Mr. officials obstructed Steinborn Seohnlein, v. (1972); L.Ed.2d 796 I his do not find that efforts in his mission. denied, 1051, 1970), cert. 1053 F.2d 423 Embassy officials. Mr. were thwarted 2215, 913, L.Ed.2d 570 26 90 S.Ct. 399 he indicated that considered and Steinborn U.S.App. Wayne v. United (1970); 115 and, later, people somewhat treated the 205, 234, (1963), cert. 238, 209 D.C. Embassy people as adversaries. Instead denied, 125, 860, 11 L.Ed.2d 375 U.S. coopera- seeking cooperation and the their 499, People Fitzpatrick, (1963); N.Y.2d 32 86 Attorney of the United States General’s tion 139, 793, 796-797, N.E.2d 300 N.Y.S.2d 346 Office, client’s best Steinborn felt Mr. denied, (C.A.N.Y.1973) cert. 141-42 alone, go it work out. didn’t interest (1973); 38 L.Ed.2d fact, gather “As a matter of I the individual Angeles Lockridge Superior Los Court deposing, planning law- County, Cal.Rptr. 3 Cal.3d apparently changed yer, his mind after his denied, (1970), cert. P.2d Mr. with Steinborn and initial conversation Note, (1971). See 28 L.Ed.2d 652 cooperated apparently if a not have he would 404; McGuire, Unpoi “How A.L.R.3d deposition 348-49. had been taken." R.T. Fruit,” 313— J.Crim.L.C.&.P.S. son scheduled, depositions difficult, No ever were but responsibility for Steinborn’s fail- prohibited not because the Consul General ure to obtain relevant depositions cannot be Steinborn admitted he personally them. placed on the United States. trying to take the risk

chose depose military Peruvian personnel. IV. CONCLUSION only person actively sought other The judgment of the district court is af- depose was a Peruvian attorney who ulti- firmed. cooperate. mately refused to during Steinborn also contends that HUFSTEDLER, Circuit Judge, concur- wtth_the meeting initial Consul General he ring and dissenting: restricting intimidated into his investi- I would reverse this conviction and re- gation. point Yet nothing he can other mand the case for a new trial because “atmosphere” than discussion to Schmidt’s confessions to the DEA agents At support meeting his contention. were involuntary as a matter of law and explained Consul General the political and their admission violated right legal Steinborn, situation in Peru to warn- process due of law and his privilege against ing investigation might upset him that his self-incrimination. I would also direct the the Peruvian authorities. Steinborn was court, district remand, to decide whether also Embassy’s told because U.S. the discovery of the canister affixed to the position very in Peru was “not strong”, it Santa Mercedes after the vessel reached help not be able to him much if he product Seattle was the of Schmidt’s con- got into serious trouble. This information fessions, solely rather than the product of disconcerting, must have been but was not searches and seizures conducted by Peruvi- an act of interference an authorities. If the canister found in officials. Seattle was the fruit of the illegal confes- only Not Embassy did the U.S. refrain sions, I would direct that the canister of from interfering investigation, with the cocaine be suppressed. possible. assisted where In addition to warning Steinborn be cautious in his I dealings government, with the Peruvian Embassy assigned specific agent DEA question is whether Schmidt’s be available to upon assist Steinborn re- inculpatory admissions to the quest. request No for assistance was ever were involuntary totality under the Twice Embassy made. helped Stein- circumstances. We must address that ques- born obtain Lurigancho entrance to Prison tion following independent examination prisoners. to interview Although the Em- (Clewis of the whole record. v. Texas bassy ready them, stood to help depose (1967) prisoners 423; would communicate to Steinborn L.Ed.2d Culombe v. (1961) Connecticut private, only in so could not deposed. 1037.) L.Ed.2d Still, Steinborn took unofficial statements “When conceded facts exist which are irrec- from some of prisoners which the U.S. freedom, oncilable with such mental regard- General Consul offered mark with an less of the contrary conclusions of the triers stamp. official Steinborn fact, refused because judge jury, whether this Court he did not want the Consul General to read responsibility cannot avoid injus- for such the statements. point At one Steinborn tice leaving the burden adjudication rejected even an offer of assistance solely (Lyons other hands.” v. Oklahoma Attorney in Seattle. (1944) 1481.) 88 L.Ed.

Steinborn unjustifiedly considered the U.S. officials in Peru to be his adversaries Schmidt’s treatment by the Peruvian au- and refused their assistance. Although thorities was characterized throughout by conditions in Peru made his investigation physical brutality and incarceration under After hours of this treatment and the The district court conditions.

appalling testimony his tortures, about promise greater found Schmidt’s was true. authorities Peruvian treatment compelled him to make a confes- authorities testified compass, Schmidt In briefest a tape Finally, sion recorded on recorder. naval authori- Peruvian he was arrested military returned him to the com- swimming the harbor near while ties later, pound. days Two Schmidt became 6-7, Lima, Peru, January night on delirious, collapsed, taken a and was to hos- took naval authorities Peruvian 1976. The pital. compound, him military made to a Schmidt hospital, When he reached the Schmidt suit, interroga- diving and his skin remove custody was transferred the Peru- long. He was accused of night all him ted section, vian narcotics called “PIP.” Short- slapped authorities being spy. Peruvian hospital, ly after he reached the Schmidt back of the head. hit him on the him and Rubio, English- was interviewed to see someone from the requests His speaking PIP officer. Rubio had received However, denied. Embassy were American suspected information about in- Schmidt’s interrogation, hours after several drug operation involving volvement in a request to his yielded authorities Peruvian ship interrogating Mercedes. While Santa Petrozzi, he whom knew. to see Commander hospital, in the Rubio struck left Schmidt that his clothes were Petrozzi He told beach, “slapped affirmative- and him around.” responded he Schmidt and on could take vomiting interrupted asked him he the interro- ly Petrozzi when to the went his clothes. Schmidt gation “us” to from time time. mili- of five Peruvian company in the beach hospital Schmidt released from guns. machine He people, armed with

tary prison. and taken to the narcotics His de Hooker, clothes, and Jim who was found his revolting. tention cell was He shared the moaning. Hooker and ground lying on sick, with eight people, cell most of them car and put back into the were Schmidt shot, none them one them and receiv military compound. to the returned ing “[P]eople attention. were medical ques- continued to The naval authorities moaning, crying, were people there was one throughout the rest of Schmidt tion us, eight of mattress for the and we would following morning. His into the night and lengthwise night, and we stretch out representative to see a requests renewed get lie on it so we could our could sidewise lawyer or to see a Embassy the American hips part shoulders and of our on the mat At end of the again denied. well, tress, and we would cuddle to like — escape. day, attempted second warmth, gether people there for and following morning, recaptured He was coughing spitting up, and then there was military to the again and returned beaten the whole terror of the situation because in a small compound. He was incarcerated guards people.” would come for these he was days, during which for several room interrogated day night. Rubio and kicked, awakened, slapped and constantly days Two after his first confinement interrogation continued. cell, typed up a confession narcotics Rubio later, rushed in at men About two sign and forced Schmidt it. put hood morning three o’clock Schmidt admitted that was somewhat were handcuffed over his head. His hands dates, but there is confused about the exact Jeep. to a he was taken behind his back and signed no doubt the confession building and thrown delivered to a He was Agents after Schmidt met with authorities then Peruvian upon a mattress. According Boggs. Hamm and While his arms were put him in a chair. damaging agents, admissions held, interrogators slapped him re- his separate on two occasions. to them then forced head peatedly. captors His place January interview took down, him of water and held into bucket noon, 1976, shortly lasted about beaten. before of his head was the back while meeting minutes. The was in twenty Ru- about what they had learned during his office, bio’s the same office where Rubio incarceration and abuse. interrogated had beaten and Schmidt. The From the earliest days of Republic, our Peruvian written “confession” was dated confessions were not admissible unless “the January p. 5:45 m. The confession is freely, voluntarily and meeting testified that at the first Schmidt without compulsion or any inducement of thing told them that his role in the whole (Wilson sort.” (1896) United States adventurer, was of an he that that had 613, 623, 895, 899, 16 S.Ct. 40 L.Ed. cocaine, nothing to do with and that he was 1090; Bram v. (1897) there simply to attach the cocaine canister 18 S.Ct. 568.) L.Ed. to the bottom of the Santa Mercedes. At grueling Even without treatment that interview, the time of the first Schmidt he had received at the hands of Peruvian believed that substance of his state- authorities, interrogation by the DEA to ments Peruvian authorities had been re- agents was coercive. Schmidt’s situation layed to the DEA Rubio testified with the DEA was far more coercive than Agent that he had talked to Hamm before Bram, that of the defendant in supra, in to any American talked Schmidt Schmidt. Supreme which the Court held that during testified the course that first inculpatory admissions made to a foreign interview, agents one of DEA told him police officer privilege violated his that had all the information from PIP. self-incrimination. A took place second interview on Febru- Bram was the First Officer of an Ameri- Hamm, ary Agents Boggs and and a with can vessel on a voyage during Feburary 3, Agent third on with Garland Captain vessel, Captain’s wife, Agent Boggs also testified that present. and the Second Mate were all brutally mur- incriminating made no admissions Schmidt Suspicion dered. first upon focused Sea- February meeting. According at the Brown, man said who to some of ship- his Garland, Agent Schmidt was more reticent mates that he saw kill Bram the Captain as February than had at the he been he was watching through a window the in meeting, but he had been admonished cabin. While in custody Halifax, first danger that he had caused to the vessel by questioned Brown and then Bram were attaching the canister too close to the rud- police Halifax officer. Bram was stripped der, agents told that he had clothing, of his but was not in any other endanger anyone’s life. not meant way abused or intimidated. The examining observes, majority opinion As officer testified that he nothing offered is both well educated and intelli- way inducements, any nor he did He not afraid of the DEA gent. was attempt to exercise per- influence to agents gave him a agents. The Miranda respond suade Bram the interrogation. it is that he under-

warning, and evident During the interview, course of the warning. contention is made stood the No officer told he Bram that had talked to agents that to the DEA statements Brown that Brown had accused him of were of the Miranda taken violation rule. murder. He testified that replied, Bram me; view, In under which not my conditions “He could have seen where was responded, statements were made the DEA he?” The officer “He states he agents inherently answered, “Well, coercive and the was the wheel.” Bram making of directly the statements was at- he could not me The see from there.” tributable to the confession that the Peruvi- officer said that he then told Bram that he could, authorities had extracted not torture. did think Bram have committed alone, in a Peruvian prison, sought and was the crime to have Bram awaiting process criminal accomplice under Peruvian his so that he “not name law. He knew that the Peruvian authori- have the blame of this horrible crime on ties had theretofore told the your own shoulders.” Bram answered that 948; (1957) v. Alabama crime, Fikes about the anything not know

he did 246.) mur- was the 1 L.Ed.2d thought Brown but that derer. repeatedly Court has held Supreme that “the situation Court said confessions a defendant successive accused, involuntarily of the communica the nature confessions were whose earlier detective, necessar him the under the due are inadmissible tion made obtained implication any possible effect of ily where the coercive process overthrows clause have been could the detective factor reply significant the first confession voluntary mental purely (E. g., the result influencing the later confessions. sur action; say, when all the is to Texas, supra, Clewis are considered in rounding circumstances 1338, 18 423; Culombe v. Con L.Ed.2d relations, only is the claim their true necticut, supra, 367 U.S. voluntary over was the statement 1037; v. 6 Malinski New York L.Ed.2d thrown, impression irresistibly is but 781, (1945) 401, 89 L.Ed. 65 S.Ct. 324 U.S. necessarily have been that must produced 1029; (1972) v. 408 U.S. Beecher Alabama fear, both, or hope of either the result 317; 234, 92 2282, v. L.Ed.2d Brown S.Ct. 33 562, 18 mind,” (168 at U.S. operating on 278, 461, (1936) Mississippi 297 U.S. 56 S.Ct. 194.) at S.Ct. 682.) 80 L.Ed. agents confession to the majority correctly out that the points during twenty- January 16 was made on far Supreme gone Court has never so as to interroga- abusive interval between minute making of a confession under hold that by the Peruvian officials. rounds tion preclude per its use circumstances as of one situated the state of mind “[With] petually making disables the confessor from the confession was prisoner when was the question a usable confession. wheth it be said that the made, how in reason can there was continued influence of er gave and which was re- answer prior earlier confession which vitiated the was volun- by wholly situation quired depends later one. That determination no influenced tary and in manner totality “The upon the of circumstances. hope To so conclude or fear? force may abuse be so clear as to effect of earlier necessary deny the relation would be to forbid other inference than that it dom (Bram v. United cause and effect.” the mind of the accused to such an inated 562-63, 194.) 18 at supra, 168 U.S. at S.Ct. the later is involun extent confession (1944) (Lyons v. 322 Here, (1967) tary.” Oklahoma U.S. in v. Texas 386 as Clewis 423, 596, 603, 1208, 1213, 1481.) 707, 1338, 88 L.Ed. L.Ed.2d S.Ct. 87 S.Ct. not of When a first confession is made under “no in the stream there was break involving physical brutality, taken circumstances from the time events” brutality, threats of terror-arous authorities custody into “obvious, tactics, ing and other such crude made the first statement the time he Connecticut, (Culombe supra, v. on Feb devices” January 16 and his later statement 622, 1860) 4, 1976, and where 367 U.S. S.Ct. to the DEA ruary court, nonop is taken under the second confession district Upon the facts found “ circumstances, re pressive substantially ‘is so the combination circumstances place in time and from the first inherently very its is moved coercive that existence confession, may later free mental confession possession irreconcilable with the (E. g., taint of the first. a lone whom its from the suspect freedom (1947) Bayer v. 331 U.S. 67 S.Ct. brought coercive force is to bear.’ Ash States full (first Tennessee, 91 L.Ed. 1654 confession made v. craft detention; (Reck military v. Pate incommunicado 88 L.Ed. 1192.” 1541, 1547, months later to second confession six (1961) (1st agent); Denno FBI Knott Howard Cir. Leyra 948. Accord 6 L.Ed.2d 1975) (first confession with- 98 L.Ed. F.2d 1060 (1954) 347 warnings; second confession appropriate out Miranda out warnings. A different case in substantially removed from first both presented would be if an accused were tak- (5th v. Thor place); time en into custody by the second authority, (confession given 1975) 512 F.2d 811 removed both in time and place from his four-day delay authorities after California original surroundings, and then adequately taking magistrate before a in defendant advised rights given of his an opportu- by second confession a few followed weeks nity to exercise them. But here the FBI Texas).)1 later to federal officers interrogation was conducted immediately agents I following assume that the DEA interrogation not state joint conducting operation police with the same Peru- station —in the same compelling course, vian authorities. if the Of DEA surroundings. Thus, obtaining a confes- undertaking a cooperative had been sion from Westover the federal authorities obtaining venture in the statements of were the pressure beneficiaries ap- Schmidt, all of the confessions would have plied by the local in-custody interrogation. illegal. patently been The lack some In these the giving circumstances of warn- joint kind of venture between American ings protect alone not sufficient to however, authorities, and Peruvian in no privilege.”2 way impact avoids the of the treatment of Exclusion of confessions obtained as upon Peruvian authorities these were any way depend does responses by questioning him to of the DEA upon judicial attempt a to regulate the con Here, as in Westover v. United practices duct and of Peruvian law enforce States, a companion case to Miranda v. ment privilege officials. Neither the Arizona, 436, 494-97, of State 86 against nor proc self-incrimination the due 1602, 694, S.Ct. 16 L.Ed.2d the two law protected ess clause from con the enforcement legally authorities were dis- duct of the Peruvian authorities. Both due “Despite tinct. the fact that the FBI process and the Fifth prevent Amendment agents gave warnings at the outset of their American taking authorities from advan interview, point from Westover’s of view tage of information extracted from warnings the came at the of end the inter- by the Peruvians from admis rogation process. Under these circumstanc- sion him the fruits of those con es, an intelligent waiver of constitutional fessions in federal trial. The means used rights cannot be assumed.” U.S. at 496, to obtain Schmidt’s confessions offend the 1639.) do suggest S.Ct. at “We not principles “justice in so rooted the tradi pre- law enforcement authorities are tions and our questioning any people cluded from conscience of to individual who as be period by (Brown has been held for a of time other ranked as fundamental.” v. Missis interrogated by 278, authorities and them sippi, supra, 461, with- point. question This case bears no resemblance to cases 371 F.2d 385 is in cited not The sole majority opinion such as v. United States admissibility in Cotton was the of statements (9th 1976) Toral Cir. 536 F.2d and Tanner prior warnings made without Miranda to the 1976) (2d v. in Vincent Cir. F.2d effective date Miranda. implied the sole coercion was the failure give adequate warnings to Miranda when the majority’s legal 2. The statement that Schmidt’s confessed, by defendant followed a later training adequate impute was more than warnings confession given. full Miranda after knowledge prior him that his confession to Pe- effect, To same United v. the States signa- ruvian naval authorities and his forced (2d Knight 1968) (inculpatory Cir. prepared by ture on the confession the PIP statements in defendant his home to any prosecution were inadmissible in American police warnings; local without Miranda later insulating cannot be a factor the confessions agents statements to FBI after Miranda warn to the DEA from the effects of the ings); (9th 1970) United v. Shea States Cir. Indeed, Peruvian mistreatment. the observa- (first F.2d 740 statement made to Brazilian ironic, tion is in view of fact the the warnings; authorities without Miranda second tried obtain admission of the statement made five later Miranda Peruvian confessions in Schmidt’s trial. warnings to American authorities in New York). (9th 1967) Cotton United States Cir. reasons, be ities. For same the district 682.) “It difficult L.Ed. revolting the question more court did not consider whether of methods conceive procure have suppressed those taken the canister should been as justice than sense [Schmidt], “poisoned use the fruit of the tree” confessions. the confessions as the basis obtained thus the confessions be The first issue which must addressed is a clear sentence was conviction as physical whether the evidence found 285-86, (Id. process.” at due denial of result of a coerced confession must be ex- 465.) poisoned tree cluded under fruit yet precise question has doctrine. II Supreme definitively answered been questions I turn .raised However, the rationale of the cases Court. admissibility physi- objections to the inevitably to the the doctrine leads applying cal evidence. physical obtained conclusion that evidence a result of coerced confession inad- as Solely compulsion under the of Stonehill missible. (9th 1968) 405 F.2d majority’s I concur in conclusion reasoning expressed by Mr. Jus than evidence other Co. v. Holmes in Silverthorne Lumber tice cocaine found on containing canister metal (1920) 251 States Mercedes was admissible. That the Santa why explaining 64 L.Ed. au- was discovered Peruvian use not make of informa- Government could before had made con- thorities during an unlawful search to tion obtained anyone. The district court de- fessions very the victims docu- subpoena from was obtained termined that this evidence “The essence of a illegally viewed: ments circumstances Peruvian authorities under provision forbidding acquisition evi- authorities, which, by American if obtained way merely is that not dence a certain Fourth Amend- would have violated the acquired shall not be used be- evidence so Stonehill, however, Applying ment. Court, but that it shall not used fore foreign “silver court held that the district knowledge of them is all. ... If at applied, doctrine and the evidence platter” source, gained independent an from accordingly question If the admissible. others, but the may proved any be like Circuit, adopt in I would the open were by the own knowledge gained Government’s Browning, in reasoning Judge dissenting of way the wrong by be used in cannot 747, (405 seq.)3 at et F.2d Stonehill. 392, (251 at 40 S.Ct. at proposed.” U.S. Wong in ) same rationale was used suppress

The the canister at- 183. The motion 471, (1963) 371 presents very v. United States tached to the Santa Mercedes Sun 441, holding 407, that incul- suppression of the 9 L.Ed.2d different issues from S.Ct. entry by an in patory obtained physical evidence. The district court statements other the Amendment must whether the violation of Fourth question never reached the illegal entry. as the finding product the was the be excluded fruit canister which so imme- “[Vjerbal evidence derives agents to the DEA or confessions made entry an authorities, an un- diately it held that from unlawful Peruvian because the action in arrest as officers’ to the DEA authorized the statements the case is no ‘fruit’ of platter present less voluntary and the silver doctrine the illegality than the more common the the Santa official applied to insulate search of of the unwarranted intru- tangible fruits illegal confessions obtained Mercedes policies underly- . do the illegal sion. Nor as well as from Peruvians any logical exclusionary rule invite ing Peruvian author- conducted searches trip company majority’s of five disagree to the beach in the Peruvi- characteriza- I with guns “voluntarily” guards with an armed with machine had led the tion that Schmidt clothing voluntary police excursion. to the location of Peruvian equate Schmidt’s I am unable on the beach. physical evi- during interrogation, distinction between and verbal nor the fruits thereof, deterring in lawless dence. Either terms of trial).) could used on officers omit- conduct federal [citation majority opinion correctly observes ted], closing the doors of federal that the canister of cocaine would be admis- unconstitu- any courts to use evidence sible if it had been discovered evidence omitted], obtained tionally [citation developed from untainted, an independent exclusionary in rules in danger relaxing the However, source. the Government bears a of verbal evidence would seem too case heavy burden to show that the seizure of introducing great to warrant such distinc- the canister was not the product of coerced 485-86, 416.) tion.” U.S. at confessions, but of such other independent principle tree poisoned was extended (E. and untainted g., sources. Harrison v. (1968) in Harrison v. United States States, supra, 224-25, U.S. at 1047, to fore- 88 S.Ct. 20 L.Ed.2d 2008; Alderman v. United States defendant’s reception testimony close (1969) at an earlier trial was induced 176.) L.Ed.2d admission him in same trial of We need not and should not decide illegally obtained confession. whether the Government carried its burden logic princi No distinction either in or in because that issue was never addressed by excluding exists ple inculpatory between the district court. The majority’s gratui- obtained as the result of an ille admissions tous comment canister would have person’s (Wong intrusion into a home gal been discovered in event is no more physical Sun) excluding evidence that conjecture. than The district court should as a result of coerced was obtained confes decide in the first instance whether Wong in sions. That verbal admissions Sun Government has met its burden of proving were obtained violation the Fourth recovery of the canister was not and that the Amendment the fruit of Schmidt’s confessions to the case was in this obtained violation agents.4 DEA As the opinion majority ac- due proc Fifth Amendment and knowledges, the record established prima rights ess makes no constitutional differ discovery facie that the of the canister was (E. applying exclusionary ence rule. traceable to Schmidt’s confessions to the Virgin The Government of g., Islands reason, For this isit (3d 1974) 914; unneces- People Gereau sary for the district court ques- reach the (1969) 761, Cal.Rptr. v. Schader 71 Cal.2d tion, unresolved, heretofore whether 457 P.2d 841. the sil- See also Model Code of ver platter doctrine Evidence, can be (1942). Rule Comment c Cf. extended to permit the use (9th 1966) federal v. Holland F.2d of illegal Gladden confessions (guilty plea con obtained involuntary foreign govern- induced aside; confession, for purpose set ments obtaining fession neither any incriminating nor statements made evidence.5 Even if it assumed, ar- (1977) any event, 4. See Brewer v. Williams would have been discovered even 406-07, incriminating had n. L.Ed.2d statements not been elicited Kiliough from Williams. States, Cf. 424: “The District stated that its deci Court United U.S.App.D.C. upon 336 F.2d sion ‘does not touch of what 929. issue In the instituted, event evidence, a retrial any, beyond incriminating it will be the state courts in the first instance to deter- statements themselves must be excluded as ’ particular mine whether may items of evidence F.Supp. poisonous “fruit tree” be admitted.” We, too, D.C. have ad no occasion to . . While Wil dress issue neither incriminating liams’ statements themselves nor 5. Stonehill v. supra, any testimony describing having led the 738, Cir., upon relied, the district court constitutionally police body to the can victim’s process did not involve due violations or the evidence, admitted into where privilege violation of the defendant’s body might was found and of its condition self-incrimination. The decision revived the sil theory body well be admissible on that the platter only ver doctrine in connection with any American use Schmidt’s guendo, Peruvians was not consti- to the

confessions forbidden, those confessions could

tutionally independent wholly

not be considered and sei- justifying search source

untainted the canister.

zure of preju- conviction for reverse the

I would of the coerced in the admission

dicial error I would

confessions denying order motion

also vacate the district and direct the

suppress canister the initial determination

court to make heavy carried its

whether Government that the canis- proof establish

burden solely on the basis of infor- was found

ter independent of obtained means

mation confessions.

the coerced America, Appellee, STATES

UNITED JEFFERS, Appellant. Wayne

Jimmie

No. 77-3141. Appeals, Court

Ninth Circuit.

Feb. 16, 1978. March

Rehearing Denied Tucson, Ariz., Murray, ap- L.

Robert for pellant. Bracamonte,

Eugene Atty., R. U. Asst. S. Tucson, Ariz., appellee. by foreign governments, have been violation of Fourth Amend- and seizures searches ment.

which, conducted

Case Details

Case Name: United States v. Richard A. Schmidt

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 24, 1978

Citation: 573 F.2d 1057

Docket Number: 77-1334

Court Abbreviation: 9th Cir.