Earl R. Cephus v. United States , 352 F.2d 663 ( 1965 )

BURGER, Circuit Judge:

This case arises out of Appellant’s convictions on two counts of unauthorized use of a motor vehicle.¹ After arrest Appellant had a preliminary hearing on October 31, 1963 and was judicially advised and warned of his right to remain silent, his right to counsel and the possibility of hostile use of his statements. While lodged in the D.C. Jail on November 17, more than two weeks after his Rule 5 preliminary hearing, he made a request in writing to see Captain Williams of the Auto Squad. The next day Williams and Detective Horrigan came to see Appellant who again consented in writing to see them. At the interview, he admitted three auto thefts, including the one charged, and asked about pleading guilty to a misdemeanor charge. The officers told Appellant the latter request would be referred to the United States Attorney.

On trial the Government did not rely on Appellant’s statements as part of its case in chief. But when Appellant testified on his own behalf and on cross examination denied all three car thefts and denied ever making admissions to Captain Williams or Detective Horrigan, the Government introduced testimony of the two officers as to the statements made by Appellant two weeks after the preliminary hearing. At this point the District Judge held a hearing without a jury present to develop evidence as to the circumstances surrounding the statements.

The testimony of Williams and Horrigan was admitted in evidence over objections and no request was made then or later than any limiting or cautionary instruction be given the jury. Appellant now urges that the receipt of this testimony without cautionary instructions is “plain error” under Rule 52(b). Fed. R.Crim.P., which we are bound to notice even though the Appellant made no request.

The contention is also made that the incriminating statement must be excluded under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed. 977 (1964), because Appellant had no counsel at the time. But those cases are not to be read as rendering inadmissible all uncounseled utterances made by an accused or arrested person. Long v. United States, D.C.Cir., 338 F.2d 549, 1964. The Escobedo holding must be read in light of its facts and especially of the purposeful exclusion of Appellant’s waiting lawyer from an opportunity to counsel his client while police pursued their interrogation. There, as in Massiah, affirmative police action existed preventing counsel and advice after the time when, as the Supreme Court decided on the facts in those cases, the right to consult with counsel had attached. Nothing resembling that is shown here. See Jackson v. United States, 119 U.S.App.D.C. 100, 337 F.2d 136 (1964). Nor does the present case bear a significant resemblance to Ricks v. United States, 118 U.S.App.D.C. 216, 334 F.2d 964 (1964), where

Ricks was committed to jail pending the determination of probable cause, and the hearing thereon was continued solely * * * to obtain counsel. But the police nipped this opportunity in the bud by virtually following upon Ricks’ heels, from the Commissioner’s hearing room into the cellblock to continue their interrogation.

118 U.S.App.D.C. at 221, 334 F.2d at 969. Two members of a division of this court excluded Ricks’ statements thus obtained, purporting to rely upon this court’s “supervisory power” over the administration of criminal justice in the District of Columbia. Even if the Ricks panel properly assumed to exercise this supervisory power — a function some believe best left to the court sitting en banc — the instant case is distinguishable from Ricks on its facts.

We cannot either agree with the dissenting view that the present record discloses anything resembling the police conduct revealed in Queen v. United States, 118 U.S.App.D.C. 262, 335 F.2d 297 (1964), and Johnson and Stewart v. United States, 120 U.S.App.D.C.-, 344 F.2d 161 (1964). Here there is no showing of police interrogating an uncounseled defendant during the course of a continuance of the preliminary hearing granted for the purpose of securing counsel.

Here, in marked contrast to the cases relied on by the dissent, it was the Appellant who requested in writing to see the police concerning a newspaper article on the subject of his arrest. When the police went to his cell it was not for their purposes, but for what Appellant, correctly or not, conceived to be in his interest. We find unconvincing the dissent’s emphasis of the fact that Appellant up to them had been charged only with unauthorized use of one vehicle.² We need not speculate concerning the content of the news article about which Appellant was concerned or about his motives for asking to see the police; Appellant’s own testimony reveals that he knew at the time of arrest that the police were interested in more than one automobile:

So I stated to the officer that I didn’t know a thing about this car [a Chevrolet]. So he said there had been recent thefts in the area * * *. And he looked over to the Ford and it had dealer’s tags. And he told his partner, he said, “I bet this is another car that we’re looking for.”

It cannot have come as much of a surprise to Appellant that the officers who came to the cell-block in response to his request were interested in the Ford as well as the Chevrolet, as to which he had already been charged. Nor was it improper for the police to reveal their evidence (a witness’ statement) to Appellant concerning use of a Chrysler, later the subject of count one of the indictment — of which he stands convicted. Once Appellant had indicated a willingness to bargain surely the disclosure to him of his opponent’s hand should not support his objection here.

The simple fact is that Appellant gambled and lost, and now seeks to “have his cake and eat it too.” Unless we are prepared to hold that police officers must refuse to listen to any person in custody as soon as the possibility of a “bargain” is mentioned or a defendant otherwise spontaneously initiates a discussion of the charges against him, we must hold the police action here permissible. We cannot say, on this record, that the officers behaved in such a way as to deprive Appellant of his right to counsel as that right has so far been defined.

Since we conclude that Appellant’s statements were admissible against him as part of the Government’s case-in-chief, it follows that no cautionary instructions were necessary.³ Accordingly we affirm Appellant’s conviction subject to the above noted correction to be made upon remand.

Remanded with directions.

1 . Apparently because of a clerical error, the District Court’s judgment reflects conviction of one count of unauthorized use and one count of grand larceny. The indictment contained a grand larceny count and an additional unauthorized use count, as to both of which the Court enteved judgment of acquittal at the close of the Government’s case in chief. We remand to the District Court under 28 U.S.C. § 2106 to have the judgment corrected to reflect that count two charged unauthorized use, not grand larceny.

2 . Two of the four counts Appellant found himself charged with after the interview were dismissed by the trial court. Of the remaining two, the Chevrolet charge had already been made before the interview and the Chrysler charge already had an independent basis in the statement of a witness, which was shown to Appellant at the interview. We find it difficult to see anything unconscionable in these circumstances.

3 . We make no determination as to which portions, if any, of Appellant’s statements would have been admissible by analogy to Walder v. United States, 347 U.S. 62, 63, 65, 74 S.Ct. 354, 98 L.Ed. 503 (1954), as impeachment, had his statements been inadmissible against him in chief. Nor do we decide whether plain error might ever inhere in a failure to give cautionary instructions concerning Escobedo-Massiah statements inadmissible in chief but offered as impeachment.