William Joseph Coughlan v. United States , 391 F.2d 371 ( 1968 )

PER CURIAM:

Appellant was convicted of aiding and abetting in the robbery of a federally insured bank.¹

Trial was to the district judge, jury having been properly waived. The conviction depended on an oral confession, evidence of which was received at the trial. The oral statements involved were taken by police officers who interviewed the appellant in a jail interview room. The court held a full evidentiary hearing to determine the voluntariness of the extra-judicial admissions. Suffice to say, the record makes it abundantly clear that the accused was fully and fairly advised of and understood his constitutional rights, including the right to have his appointed attorney present, and with that understanding he waived those rights and voluntarily gave the incriminating statements to police officers. The trial court so found and this finding is thoroughly supported by competent evidence.

At the time the confession was obtained, the appellant was represented by court-appointed counsel. This fact was well known to the officers who interrogated the accused. No notice was given by the officers to defendant’s counsel of the intended interviews and he was not present when the statement was taken.

Under this state of the facts, appellant contends that his constitutionally guaranteed right to counsel² was effectively denied. We are asked to rule that any statement, admission or confession secured by peace officers from a defendant represented by an attorney, where the attorney was not timely advised of the proposed interview or interrogation, be rejected as violative of the right to counsel. Appellant recognizes that this Sixth Amendment right may be voluntarily waived, but, at oral argument, it was contended that such a waiver would never be knowing and truly voluntary unless counsel was present to advise the client.

It may well be that the day is approaching when the right to counsel may be expanded to the point where an accused may only be interrogated by the police in the presence of his lawyer. However, no persuasive precedent for the holding here sought has come to our attention. Appellant relies heavily on the teaching of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda specifically recognizes prior cases holding that the right to counsel may be waived.³ Here a clear and knowing waiver was shown. We are unwilling to attempt to expand the Miranda ruling to the extent sought by appellant.

We, on the other hand, do not want to be considered as lending our approval to the practice, if indeed a practice exists,⁴ of interviewing accused persons in jail in the absence of counsel. The better, fairer and safer practice is to afford the defendant’s attorney reasonable opportunity to be present. When this is done the heavy burden of proving a waiver of constitutionally protected rights is immeasurably eased.

Affirmed.

1 . 18 U.S.C.A., Sec. 2113(a) (d); 18 U.S.C.A., Sec. 2(a).

2 . “ * * * and to have the Assistance of Counsel for his defence.” U.S.C.A. Const. Amend. VI.

3 . Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).

4 . There was convincing evidence that the father of the nineteen year old appellant requested that the officers talk to his son in jail.