*2 Judge, HUTCHESON, Chief Before ALLRED, Judge, HOLMES, Circuit Judge. District
Judge. ALLRED, District jury of
Appellant convicted unlawfully acquiring marihuana without thereon, in violation paying tax 2593(a). He was sen- 26 U.S.C.A. § years imprisonment and five tenced admitting dollar, iden- fined one offender, charged tity second as a under section filed information an (b), Title McCleary di presented on this testified questions are Two Legality rect search examination that one appeal: First: by city things offi- he did was to advise appellant’s home conducted rights, warrant. that “he his constitutional or arrest a search cers without *3 incriminating any anything, me but didn’t have to tell thing certain whether Second: might he did be for were vol- tell me used arrest statements made after untary. against This him.” statement —that might anything he tell the officer brought question was The search appellant standing be used alone for — in of trial advance on before the court great very a would not mean deal but is Appellant called two and overruled. significant light in the what trans city as the tes So far Houston officers. pired city and offi the of the hearing concerned,1 timony at that present cers who were at the time. It is error in no the committed trial court McCleary says noted that that one of the overruling Ap suppress.2 to the motion things, thing, the first did was he discharge pellant his burden.3 failed to appellant to advise to constitu rights. say tional All the officers that a McCleary, objection, a fed Over production demand was made agent, permitted to eral narcotics required order form 26 under U.S.C.A. testify morning the ar that on the 2593; they questioned appel and that § appellant the evidence rest that supply. to lant as his source of The ar marihuana, by city seized the officerswas night rest had been made the before at very long, that he hadn’t been a dealer p.m. Appellant 8:30 and his wife were bought that from a man who used he police question taken to the station and Overpass to run the Inn and that further They ed. were not “booked” until 10:40 questioning led to name of his the source. p.m., when a notation was the made on Appellant requested per that he be police blotter “hold for the morals divi McCleary mitted to take on “for voir dire McCleary sion the federal officers.” and purpose ascertaining the whether or and, early morning was called the next warning” proper given. not a had been along arresting ques officers, with the sufficiently ques We think this raised the appellant. making tioned He a denies tion as to whether the statements were “bargain,” knowing city any the voluntary. may made, appellant,4 officers have night 3, 1953, 1. On the of June the of they could in not make a narcotics case “special employee” appel ficers a sent state court. attempt buy lant’s residence to mari Scotti, D.C., v. reported United States F. buy 102 them, 2. huana. After he a Supp. 747; S., Cir., they 193 house, Scotti v. U. 5 and, went to the knocked re 644; States, ceiving response, F.2d v. Frederick United leave, were about to Cir., 712; appellant 208 F.2d Serio United up. and his wife came Cir., 576; 5 States, F.2d Burford v. United One of the officers told he had F.2d some bad information about they marihuana and that wanted to search States, Cir., 3. Batten v. United F. premises. Appellant they asked if 2d 75. and, upon had a warrant of kind be ing they produced not, informed that did McCleary’s testimony slightly a seems key and let them The in. officers searched evasive at times: charged and “Q. you anything found marihuana in the And do know about They indictment. bargain being arrested and struck he between city jail, ques city No, took them to the and the officers? A. I don’t time, lodged any bargain, tioned them a short then sir. know jail overnight. day “Q. you any bargain them in The next Do know of might you anything McCleary, turned have made or over been did evidence tell they might “adopted” federal in narcotics officer made who bargain way following day, on case of a with the June defendant? 5th. They Sir, policy I denied it am not sure understand was their what to file * * * bargain their cases in is. federal courts when judge jury could about with him instructed the but he talked admits aid not Government supply reference to consider it unless the and in source of freely city assisting proved offi ing him and made voluntarily, response catching big suppliers; “that cers in any force, promises.” This is threat or of them over called some applied phone and, supervision offi not as correct the abstract but under omits the purchases It cers, re the facts this case. made went out reward, hope incentive or sulting prosecutions; and element in successful n way. They every “cooperated” inducement held officers. deny any express promise hand, and the Poole, testified the other Officer *4 may prom- morning a well that such June believed positively of that on the MeCleary pointed express; but, out present ise had to as 4th, be when he was above, MeCleary one of the testified that appellant to source of as his talked to things appellant they attempted he did was to tell supply, to strike that anything for, bargain up and be used him at that time that said with he a portion against logical appellant performed of his as as him. It is that that well bargain. appellant testified5 had further from alone the He believed this that arrest, following day the the that on him tell it would be best for to the whole talking appellant about story helping to when he was he him- and that would be supply, told had by self, “cooperating.” his of that he source or his his “we” would release that to is of Added this the Poole bargain wife. him, that struck a with appellant kept; and he told that foregoing It clear from the that is prosecute that “we” would not MeCleary to was statement “bargain” wife.6 what the Just the was involuntary The trial a matter of law. as 11) suppress, (it. Now, you On the motion to : MeCleary, did “Q. Officer you help would Now, day ever tell the defendant Poole, Mr. on the “Q. third you this him all could in reference to following, June, day which was the A, exactly in words. Not those conversation, matter? you state whether or conver- not had distinctly I do recall Yes, the defendant sation with here. A. him, talking me that to he told sir. it, that his wife had he all owned what “Q. And was that conversation? it, nothing him I and to do with talking regard A. I to was to him in not and as she was inasmuch getting his source of his where he was it, nothing had to with she do had she nothing marihuana. would not be one to and I to fear cooperative? He “Q. Did he act A. prosecute the if that was case. her did. morning of on the June That was “Q. correct, cooperate you? A. I believe that sir? is “Q. And did he 5th, morning sir, Yes, be- the was on A. sir. you, arrest I understand the cause as you tell him at that time that “Q. Did Wednesday. 3rd, 4th a the made on prosecute you would not he or his wife actually— Friday we when possession to their if he in reference Thursday, The fourth would be “Q. you stamping assist aid and would Yes, A. sir. That is cor- it not? would marihuana? source the root or the Wednesday, was it The 3rd was rect. No, I him we didn’t tell wouldn’t sir. 4th, Thursday, I talk with did sir? The on him. file The Government him at that time. you what tell him? A. Just did “Q. Friday adopted case until morn- not ing, the release him that we could his wife. I told actually 5th, is I and that you interrogated to what tell And did “Q. the defendant and he said got permission position I and I from in the matter? A. own that it was actually my go superiors anything pertaining an order to tell him didn’t to filing filing. case and not file on did or not ahead with case as evidently Now, day me— because the wife this was on the third “Q. before or after he made June; Was this “Q. is correct?” you phone calls for all and set those people? insistence that he refused to Poole’s other A. That was the those against appellant, agree day (Emphasis supplied.) file but after.” appel search; From wanted show. record does not bargain poor and standpoint, and his inquired accusations wife denied lant’s it was authority a war- whether the officers since the officers had replied any kind; promise immunity. the controll rant of officers But bargain, negative ing part was a wanted to but said fact is that there produced anyway; appellant parcel conversation search whole key door; “cooperation” opened officers supply and about source of affording immunity, quantity which, re found a small marihuana while not right (who the use of the ad where the informer “was in lieves from against marihuana”) him.'7’“In the racket mission or that dealt in evidence be; requisite appellant said, courts, of vol told them would federal looking by you for, “that is establish what are it is satisfied untariness is not ing produce merely marihuana.” failure confession was not While that the form, upon by order promise a threat. A an notice induced reasonable if, collector, only presump- voluntary in law and demand confession is guilt voluntarily if, was, fact, tive under 26 made.” evidence U.S.C.A. conclusive; *5 Ziang States, 2593(a), Sung it United 266 is and had § Wan v. McCleary’s 3, testimony 1, 1, it 14, not been for L.Ed. 131. U.S. 45 S.Ct. his, said was Government’s own that he very long, clearly appellant’s etc., hadn’t been a dealer jury witnesses shows might belonged McCleary, while under ar have believed admission to rest, voluntary. appel- informer. The absence was not apartment, lant and his wife from the say that Nor can we was identity the informer’s as a marihuana these admis harmless error. Without sions, dealer, ready entry apart- his into the city the record would stand: The ment, telling right the officers where officers watched an informer start the they would find it and the fact apartment; they stairs to money used, marked ap- was found on time saw him later when return short pellant, have created a reasonable (which package to them he delivered a say doubt. We cannot what the evidence), within introduced in would have done but had the according officer,long minutes, one right pass question to have them on the another, they according to went to the er damaging without admission made answered, apartment, no one knocked and “bargaining” atmosphere under the although seen had not presented. which it was leave; they started leave wife Reversed. arrived; his wife Judge. HUTCHESON, some bad infor Chief marihuana and dissent. mation about Citing, only among oases, evidences mistaken be- other Bram v. Unit promise States, part 532, 183, 187, ed lief on that such U.S. S.Ct. proper. promise following is But sufficient L.Ed. quoted approval voluntary, is not a confession from 3 show that Bussell on “ (6th ed.) reference Crimes whether it be with 478: ‘But a confes only sion, admissible, in order lant’s case or not. to be must be voluntary; free and must not be by any White United 194 F. extracted sort of threats or vio lence, by any 2d 215. nor obtained direct or im ” * plied promises, slight however