Goldsmith v. United States, 15280

• Decision Date: 17 March 1960
• Docket Number: No. 15280,15281.,15280
• Parties: Warren G. GOLDSMITH, Appellant, v. UNITED STATES of America, Appellee. Earl L. CARTER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

277 F.2d 335 (1960)

Warren G. GOLDSMITH, Appellant, v. UNITED STATES of America, Appellee.

Earl L. CARTER, Appellant, v. UNITED STATES of America, Appellee.

Nos. 15280, 15281.

United States Court of Appeals District of Columbia Circuit.

Argued October 15, 1959.

Decided March 17, 1960.

Petition for Rehearing by the Division Denied April 15, 1960.

Petition for Rehearing Denied April 15, 1960.

COPYRIGHT MATERIAL OMITTED

Mr. Daniel I. Sherry, Washington, D. C. (appointed by the District Court) and Mr. Foster Wood, Washington, D. C., for appellants.

Mr. Nathan J. Paulson, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee.

Before PRETTYMAN, Chief Judge, and FAHY and BURGER, Circuit Judges.

Petition for Rehearing En Banc Denied April 15, 1960.

BURGER, Circuit Judge.

We granted these consolidated appeals at government expense to review convictions under a two count indictment charging robbery and assault with a dangerous weapon under §§ 22-2901 and 22-502, D.C.Code (1951).¹

The events surrounding the arrest and confessions are as follows: one Thorley Coley was arrested on Sunday, April 12, 1959, in connection with activities having no relation to the crimes involved in this appeal. Search of Coley's person produced a newspaper clipping about the robbery for which appellants were convicted. Coley's explanation for having this newspaper clipping was that he had been playing cards with some friends, including Raymond Carter, who had stated that his brother, Earl, and appellant Warren Goldsmith had robbed the Kaplans, complaining witnesses here.

When they received this information from Coley, the police had a limited description of the Kaplan robbers as having been young Negro men, about 18 years old, 5 feet 9 inches to 6 feet tall, of slim build, who wore pullover sweaters and masks which covered the entire head of each.

The police picked up the two men on Monday, April 13; Goldsmith at 12:30 p. m. at his home, and Carter at his home at 12:35 p. m. They reached the precinct station about 1 p. m. At that time the police had only the vague description of the robbers in the report of the complainants, along with the unverified statement of Thorley Coley.

Mrs. Kaplan had told police that at the time of the robbery she carried in her purse the day's receipts from grocery sales totaling about $345, including some small change. An employee, Samuel Jones, and a friend named Shephard, were with the Kaplans as they left their store. According to their combined reports, two or possibly three men dashed from a nearby alley attacking Mrs. Kaplan and tearing a purse from her, and attacking Mr. Kaplan as he was about to get into his car. Jones struck at the attackers with his umbrella and they fled the scene; the whole episode occurred within a very short space of time.²

Although the two appellants arrived at the police station at one o'clock, the record discloses the actual interrogation did not commence until about 1:30 because the two detectives assigned to the case had to defer questioning to attend to routine office matters because other staff members were out to lunch. At 1:30 p. m. they took up the questioning, but this was interrupted at 1:52 when the two detectives were called to the District Court as witnesses. They were excused, returned to the precinct station and resumed the interrogation from 2:10 to about 2:27, when they were again called to the District Court. They returned at 3:12 p. m. to continue the interrogation. Shortly thereafter Thorley Coley and Raymond Carter, who had been sent for, reached the police station. The detectives spoke to them briefly and about 3:35 confronted the appellants with Raymond Carter, asking him to repeat in the presence of appellants what he had previously said implicating them. Raymond Carter promptly repeated the accusatory statements and at once each of the appellants promptly admitted the attack and robbery. Appellants explained in detail their planning of the robbery, their methods of operation, etc. These statements were then reduced to writing and signed. This process took a little over one hour. At about 5:00 appellants were taken to Municipal Court for formal arraignment.^2a Arraignment proceedings began at 5:30 p. m The Municipal Court Judge appointed counsel to represent Carter and Goldsmith at the arraignment. Appointed counsel consulted with appellants for about 15 minutes advising appellants of their right to remain silent and that any statements made by them could be used against them.³ The Municipal Judge formally gave them the same warning. At the conclusion of the hearing the Municipal Judge ordered the appellants to be held for the Grand Jury, and at the request of the police signed an order placing the men in the custody of the United States Marshal and the police, permitting police interrogation and continued investigation "for the purpose of obtaining certain pieces of evidence, * * * confronting them with the complainant and for the further purpose of having them re-enact the offense."

Upon returning to the police station, at approximately 6:30 p. m., an officer read to the appellants their pre-arraignment written statements and asked if the facts recited were true and correct. The appellants admitted they were true. Mrs. Kaplan, who was present and heard the recital immediately took issue with the appellants as to the amount of money which they claimed to have secured from her purse. Appellants had fixed the amount as about $2 all in small change, but Mrs. Kaplan said her purse contained about $340 in bills and the balance in small change. She suggested they had not looked in the small compartment of the purse where the bills were kept. Earl Lee Carter, without being questioned by the police, answered Mrs. Kaplan saying that he and Goldsmith had not only looked through the purse but that they had ripped it to pieces before burning it in a stove in Goldsmith's house.

Shortly after 7 p. m., Carter and Goldsmith were taken by car to the Kaplan grocery store where they pointed out the shrubbery which concealed them while they lay in waiting for the Kaplans. Appellants also related in detail how they had struck Mr. and Mrs. Kaplan, how they snatched her purse and where they fled. They identified the Kaplan automobile but insisted that a broken window in the Kaplan car was damaged before they committed the robbery and was not broken by them. The conversations with the Kaplans and reenactment of the crime took place in the presence of the United States Marshal and while they were in his custody.

In the trial, the government offered the written confessions as evidence of voluntary statements re-affirmed after the arraignment. Upon objection, the District Court held a hearing out of the presence of the jury and ruled that even though the pre-arraignment confessions were inadmissible under the Mallory case, infra, the written statements were admissible as evidence of admissions which appellants made voluntarily after arraignment. The District Judge carefully charged the jury that such statements were to be considered by the jury only if the re-affirmation of the statements following the arraignment was found by the jury to be voluntary.

Appellants took the stand and each testified that he had been beaten and terrified during interrogation, and that he re-affirmed the written statements after arraignment in fear of subsequent brutality. The jury returned verdicts of guilty as to both appellants.

On this appeal it is urged that the evidence of re-affirmation of the pre-arraignment confessions and the entire pre-arraignment confessions themselves were inadmissible (a) because the re-affirmations were "fruit of the poisonous tree," being merely re-affirmations of admissions made during a period of illegal detention after illegal arrest without probable cause; (b) because the magistrate lacked authority to release the appellants for further police questioning, or while in the custody of the Marshal; (c) because the admissions should have been excluded as involuntary; and (d) because the District Court should have granted a mistrial when a police officer testified that appellants orally admitted the crime in his presence before the arraignment; it is urged that the court's instruction that the jury should disregard this admission could not eliminate the prejudice.

(1)

Appellants' contention that the re-affirmation and enlargement of the formal written confessions after arraignment, including re-enactment of the crime, are inadmissible because they were the fruit of the original confessions is answered on several bases. In United States v. Bayer, 1947, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654, the defendant made a confession, while in detention and before any arraignment; this confession was not offered in evidence and the Court assumed that it was "inadmissible under the rule laid down in McNabb v. United States 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, * * *." 331 U.S. at pages 539-540, 67 S.Ct. at page 1398. Six months later, after having been released, he made a second confession substantially the same as the earlier one but somewhat enlarged in detail. When he was tried the first confession was not offered in evidence. The second confession was offered, received and formed the basis of his conviction. The Court of Appeals, United States v. Bayer, 2 Cir., 1946, 156 F.2d 964, 970, reversed the conviction on grounds that the second confession was the fruit of the first.⁴ The Supreme Court reversed the Court of Appeals, and affirmed the conviction. In so doing it specifically rejected the "fruit of the poisonous tree" argument in this context, distinguishing the Silverthorne and Nardone cases:

"Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical

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