Westover v. United States, 19543.

• Citation: 342 F.2d 684
• Decision Date: 11 March 1965
• Docket Number: No. 19543.,19543.
• Parties: Carl Calvin WESTOVER, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

342 F.2d 684 (1965)

Carl Calvin WESTOVER, Appellant, v. UNITED STATES of America, Appellee.

No. 19543.

United States Court of Appeals Ninth Circuit.

March 11, 1965.

F. Conger Fawcett, San Francisco, Cal., for appellant.

Cecil F. Poole, U. S. Atty., Jerrold M. Ladar, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before CHAMBERS, Circuit Judge, MADDEN, Judge of the Court of Claims, and JERTBERG, Circuit Judge.

MADDEN, Judge:

This is an appeal from convictions on two counts of violations of 18 U.S.Code, §§ 2113(a) and 2113(d). Count (1) charged the robbery of a federally insured savings and loan association, and count (2), the robbery of a federally insured bank. Both of these financial institutions were in Sacramento, California. The savings and loan association was robbed on February 4, 1963, and the bank on March 14, 1963.

The appellant was arrested in Kansas City, Missouri, at about 9:45 p. m. on March 20, 1963, by two Kansas City policemen, on charges of robberies in Kansas City and also because of a report from the Kansas City office of the Federal Bureau of Investigation that the appellant was wanted on a felony warrant from the State of California. When arrested, he was entering an automobile. When he was first questioned by the Kansas City policemen he gave a false name, but later admitted his identity. He was searched, at the time of arrest, and his automobile was searched. He was taken to police headquarters and, after notice had been given to personnel in places in Kansas City that had been held up, he was placed in a line-up and identified by certain observers as the robber. At about 11:45 p. m. he was "booked" by the Kansas City police.

F.B.I. agents in Kansas City, having been advised that the appellant had been arrested by the Kansas City police and was in custody in the city jail, told the police that they desired to interview the appellant. At about 11:30 a. m. on March 21, the F.B.I. agents were told that the appellant was available, in a room in the city jail. He had been interrogated, during the forenoon, by the police with regard to the local robberies. Three F.B.I. agents conducted the F.B.I. interview. No Kansas City policeman was present at the interview. The F.B.I. agents advised the appellant that he did not have to make a statement; that any statement that he made could be used against him in a court of law; that he had the right to consult an attorney. The agents made no threats or promises to the appellant. The appellant made detailed statements as to how he had committed the two Sacramento robberies for which he was later indicted and tried. His statements were written down in long-hand by one of the agents, as they were made, a separate statement being made for each of the robberies for convenience of filing. The statement about the savings and loan robbery occupied three pages and the one about the bank robbery occupied four pages. During the interview, there was on the table in the interview room a gun which the Kansas City police had found when they searched the appellant's hotel room. This search was made pursuant to a "waiver of search" given by the appellant to the Kansas City police. The appellant said to the F.B.I. agents that that was the gun which he had used in the robberies. He said that the money, approximately $600, which he had when he was arrested in Kansas City was a part of the proceeds of the bank robbery, that it was all that was left of the $4300 which he obtained in that robbery, because he had lost all but $1000 of the money gambling at Las Vegas on his way to Kansas City.

The statements were signed by the appellant and the F.B.I. interview was completed at 2:00 or 2:30 p. m., some two or two and one-half hours after it began. At the time the interview began, and when it ended, none of the F.B.I. agents had received from Sacramento any details regarding the robberies described in the appellant's statements to them. They had, so far as appears, only been notified that the appellant was "wanted" for the robberies.

Two of the same three F.B.I. agents interviewed the appellant again on the morning of the following day, i. e., on March 2. He told them that he wanted to change his statement of the previous day with regard to his mode of transportation to the savings and loan company on the day he robbed it, and to make a similar change with regard to his transportation in connection with the robbery of the bank. He said that the rest of the two statements were true as he had made them the previous day.

The statements above discussed were offered and received in evidence at the appellant's trial. He now urges that they should have been excluded, sua sponte by the court, even though appellant's counsel at the trial did not object to their admission. He says that the doctrines of the cases of McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100; Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479; and Ginoza v. United States, CA 9, 279 F.2d 616, and Rule 5(a) of the Federal Rules of Criminal Procedure require the exclusion of the appellant's confessions.

The precedents cited by the appellant have no direct application to the facts of this case, since the appellant had not been arrested by federal officers and was not in their custody at the time he made the statements, nor, as we shall see, until eleven days thereafter. The appellant, however, urges that, even if a prisoner is in state custody, the McNabb exclusionary rule may exclude a confession made to federal agents if there is between the state and federal agents a cooperative "working arrangement" of a kind which makes the federal agents responsible for illegal detention by the state agents.

Appellant cites Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829, as the instance in which the Supreme Court applied the doctrine referred to above. In that case a Tennessee sheriff illegally arrested many persons suspected by him of having blown up certain power lines. They were not taken before a magistrate, as Tennessee law required. They were held in custody in a private building belonging to the company some of whose facilities had been blown up. While there held, they were questioned intermittently over a period of five days, during which they saw neither friends, relatives, or counsel. At the end of, and as a result of the interrogations, incriminating statements were obtained from six persons. They were indicted for and convicted of the federal crime of conspiring to damage property owned by the Tennessee Valley Authority, a federal agency. Their incriminating statements referred to above were admitted in evidence at their trial. The Court, in describing the experiences of the petitioners, first described those of Simonds. He was arrested on Wednesday afternoon. He was questioned by an F.B.I. agent on Thursday morning, by three agents for two hours on Thursday afternoon, by two agents for two hours on Thursday night. On Saturday afternoon and evening he was questioned during three different periods. On Sunday afternoon he was questioned, and confessed. The experiences of the other petitioners, each recited by the Court, were comparable.

The Court speaks of the petitioners having been held, some for days, and subjected to long questioning in the hostile atmosphere of a small company-dominated mining town. The Court says:

"There was a working arrangement between the federal officers and the sheriff of Polk County which made possible the abuses revealed by this record."

The Supreme Court did not, of course, condemn working arrangements between federal and state law enforcement officers. It condemned the kind of working arrangement revealed in Anderson, "which made possible the abuses" which there occurred.

In the instant record we find no such abuses, nor any abuses at all. When a state has custody of a prisoner, we see no reason whatever why it may not allow F.B.I. agents, in the state's police headquarters, to interview the prisoner. In our case, being interviewed, the appellant rather promptly confessed, since the whole interview, including the writing in long hand of some seven pages, was accomplished in two or two and one half hours. The appellant was in the custody of the State. He had been arrested and booked by the State on two serious charges, robbery. There was no possible reason why the F.B.I., which had no evidence against him until it received his confessions, should have demanded or become responsible for his custody. If it were relevant, it might be noticed that the Missouri Statute, Vernon's Annotated Missouri Statutes, § 544.170, provides that one arrested without a warrant shall be discharged from custody unless within twenty hours he is charged on oath and held by warrant to answer. The time of the appellant's interview by the F.B.I. was well within the 20 hour period set by the Missouri statute. The fact that the F.B.I. allowed the appellant, on the day following his confessions, to correct his statements in ways unrelated to his guilt and of no interest to the prosecution is of no importance.

The fact that the State of Missouri held custody of the appellant for some eleven days after his confession before surrendering him to the F.B.I., which by that time had an indictment and a warrant for his arrest, does not retroactively convert the rational proceeding which occurred on the day after the appellant's arrest into an abuse of the kind which disturbed the court in Anderson, supra. It was not for the F.B.I., nor is it for us, to assume, without evidence, that Missouri's detention of the appellant was unlawful.

The case ...