322 F.2d 770 (5th Cir. 1963), 19773, Lee v. United States

Docket Nº:19773.
Citation:322 F.2d 770
Party Name:Denzel Milton LEE, Appellant, v. UNITED STATES of America, Appellee.
Case Date:September 17, 1963
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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322 F.2d 770 (5th Cir. 1963)

Denzel Milton LEE, Appellant,


UNITED STATES of America, Appellee.

No. 19773.

United States Court of Appeals, Fifth Circuit.

Sept. 17, 1963

Rehearing Denied Dec. 23, 1963.

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R. Gordon Gooch, Houston, Tex., for appellant.

Robert B. Ward, Asst. U.S. Atty., Dallas, Tex., for appellee.

Before HUTCHESON, BROWN and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This case involves the right of an accused to counsel during police interrogation.

The defendant appeals in forma pauperis from a conviction under the Federal Narcotic Drugs Import & Export Act, 21 U.S.C. § 174, for conspiracy to import and distribute heroin. The defendant, Denzel (Buddy) Lee was alleged to have been a member of a narcotics ring, operating in the Dallas-Fort Worth area, which was obtaining heroin smuggled in from Korea by United States Army Sergeant Billy J. Montgomery. Montgomery admitted that he mailed heroin from Inchon, Korea, to John Rule. Both Rule and Lee were accused of receiving the heroin for distribution to two other defendants, John Shelton and H. N. White, who, in turn, sold it to Negro addicts in Fort Worth. Lee was charged specifically with a sale of heroin to Shelton at Dallas in July, 1961, and two sales to Shelton at Corsicana in November, 1961. Lee, Rule, Shelton, White, and Montgomery were brought to trial as co-defendants. Montgomery pleaded guilty. The other four men were convicted and sentenced to terms ranging from eight to ten years. The convictions were based largely upon the testimony of two addicts who were alleged to have been the defendants' co-conspirators.

The appellant contends that his conviction rests in part on hearsay statements of a co-conspirator made out of his presence. He contends also that the

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trial judge did not instruct the jury that knowledge of the illegally imported narcotics and knowledge of the conspiracy to import such narcotics were essential elements of the crime with which he was charged. These are serious contentions. We do not discuss them, however, because we base our decision on the error of the trial judge in not excluding the testimony of a special government investigator relating to alleged admissions of the defendant during an ex parte police interrogation.

For purposes of this opinion, the salient facts are few and undisputed. Two special Government agents secretly interrogated Lee in his prison cell. They appeared at the cell door without prior notice. Lee had previously been indicted. He had no counsel before or during the questioning. The agents did not record Lee's statements or reduce them to writing. At the trial, over the objection of the defendant's counsel, one of the agents testified in narrative form to Lee's oral 'admissions'.

The objection to the admissibility of the special agent's testimony is predicated upon the Fifth and Sixth Amendments and the supervisory power of the federal courts over the administration of federal criminal justice under the McNabb-Mallory doctrine. 1

The basic difficulty this case presents arises from the conflict between society's interest in police interrogation of suspected criminals and the protection of an individual's constitutional rights during such an interrogation. There is general agreement among criminologists that interrogation of criminal offenders is a necessary ingredient of police activities. 2 There is also no doubt

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that a police interrogation of a defendant in secrecy, or at least in privacy, is more effective than interrogation in the presence of the defendant's lawyer. But the Sixth Amendment states, 'In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence'. The Supreme Court has construed the Amendment to mean that in federal courts a defendant has an absolute right to counsel, and counsel must be provided for defendants unable to employ counsel, unless the right is competently and intelligently waived. Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. Moreover, the Supreme Court now holds that this right is so fundamental to a fair trial and to due process of law that it is made obligatory upon the States by the Fourteenth Amendment. Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

The Sixth Amendment speaks of 'Assistance of Counsel for his defence'. Giving this clause a narrow construction, the right might be construed to begin at the time of trial. In 1932 Mr. Justice Sutherland, in the Scottsboro Cases, repudiated any such narrow view: '(A defendant) requires the guiding-hand of counsel at every step of the proceedings against him'. Powell v. Alabama, 1932, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158.

The Supreme Court has not passed directly on the question at issue as it is presented in the case before us. In Mallory v. United States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, however, the Court stated that one accused of crime is not to be taken to police headquarters in order for the prosecution to obtain damaging statements, but is to be arraigned promptly, at which time he may obtain counsel, and be fully apprised of his rights. In two decisions involving defendants tried in State courts the Court has dealt with the question whether it was a violation of due process for the State to refuse to allow an accused to have his attorney present during police interrogation. In Crooker v. California, 1958, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448, a majority of the Court held that denial of counsel was only one factor in determining the legality of the confession obtained during the interrogation and did not in itself render the confession involuntary, unless the defendant 'is so prejudiced thereby as to infect his subsequent trial with an absence of 'that fundamental fairness essential to the very concept of justice. ""'' 357 U.S. at 439, n. 11, 78 S.Ct. at 1292, 2 L.Ed.2d 1448. Justice Douglas, dissenting in an opinion concurred in by Chief Justice Warren and Justices Black and Brennan, took the view that the defendant was denied due process:

'The mischief and abuse of the third degree will continue as long as an accused can be denied the right to counsel at this the most critical period of the ordeal. For what takes place in the secret confines of the police station may be more critical than what takes place at the trial. * * * That same right (to counsel at the trial) should extend to the pretrial stage. * * * The demands of our civilization expressed in the Due Process Clause require that the accused who wants a counsel should have one at any time after the moment of arrest.' 357 U.S. 433, 444-448, 78 S.Ct. 1294-1296, 2 L.Ed.2d 1448.

In Crooker the accused was a college educated man with law school training who knew of his right to keep silent. In a companion case, Cicenia v. LaGay, 1958, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523, the accused did not have the intelligence nor legal education of Crooker but he had consulted his lawyer and, presumably, was advised of his rights. Cicenia followed Crooker in holding that,

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in the circumstances, a confession obtained during a police interrogation after refusal of counsel to the accused, was not necessarily a deprivation of due process. However, Justice Harlan, for the majority, stated that under the McNabb doctrine, 'Were this a federal prosecution we would have little difficulty in dealing with what occurred under our general supervisory power over the administration of justice in the federal courts.' 357 U.S. at 508-509, 78 S.Ct. at 1299, 1300, 2 L.Ed.2d 1448. Justices Douglas and Black and Chief Justice Warren dissented in Cicenia as they had in Crooker.

Crooker can be read as implying, if it does not hold, that 'every suspect in police custody who does not know of his right not to answer police questions has the constitutional right to talk to a lawyer before he can be interrogated. The presumption against waiver of the constitutional right can cast Crooker protection around one who does not request counsel since his failure to ask for a lawyer may buttress the defendant's argument that he did not know his rights.' Weisberg, Police Interrogation, in Police Power and Individual Freedom 153, 178 (Ed. Sowle. 1962). Griffith v. Rhay, 9 Cir., 1960, 282 F.2d 711, cert. den'd 1961, 364 U.S. 941, 81 S.Ct. 460, 5 L.Ed.2d 373, adopted this reading of Crooker.

Crooker and Cicenia have an important relation with Spano v. New York, 1959, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265. In Spano, as in the instant case, police officers interrogated the prisoner after indictment and in the absence of counsel. Before surrendering to the police on a charge of murder, Spano had engaged an attorney who had cautioned him to answer no questions. He was taken to the District Attorney's office and subjected to 'massive official interrogation' for eight straight hours until he confessed. Chief Justice Warren for the majority did not reach the question of the right to counsel during interrogation, because the Court found that the confession was obtained by coercion. Nevertheless, Justice Warren took pains to point out that:

'The police were not therefore merely trying to solve a crime, or even to...

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