Landsdown v. United States

• Decision Date: 23 June 1965
• Docket Number: No. 21360.,21360.
• Citation: 348 F.2d 405
• Parties: Robert Henry LANDSDOWN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

348 F.2d 405 (1965)

Robert Henry LANDSDOWN, Appellant, v. UNITED STATES of America, Appellee.

No. 21360.

United States Court of Appeals Fifth Circuit.

June 23, 1965.

COPYRIGHT MATERIAL OMITTED

Bernard S. Dolbear, New Orleans, La., for appellant.

John C. Ciolino, Asst. U. S. Atty., New Orleans, La., for appellee.

Before TUTTLE, Chief Judge, and JONES and ANDERSON,^* Circuit Judges.

JONES, Circuit Judge:

This is an appeal from the conviction of the appellant, Robert Henry Landsdown, for interstate transportation of a firearm after having been convicted of a felony.¹ Landsdown and a traveling companion, one Tisdale, were arrested on August 8, 1963 by Louisiana State Troopers in response to reports from an observer that they had been seen in a bar brandishing a pistol and attempting to sell some jewelry, and a radio call concerning a jewel theft that had recently occurred. The troopers were provided with descriptions generally fitting Landsdown, Tisdale, and the car in which they were traveling. The evidence is not clear concerning what charges were placed against Landsdown and Tisdale,² but they were taken to the Slidell police station for questioning.

Upon their arrival at the police station, Landsdown consented to a search of his automobile, and Tisdale assisted in the recovery of a twenty-two caliber revolver, which was located behind the dashboard. Behind the kick-panel on the driver's side, the state officers, with Tisdale's assistance, found a collection of tools. The state officers testified that after the recovery of these items, Landsdown at first denied knowledge and then admitted ownership of the pistol and the tools, and stated that he had transported them from Mississippi. Landsdown denied making this admission. The officers also testified that Landsdown had stated at the police station that Tisdale had nothing to do with the articles found in the car. The testimony of the officers indicated that after the arrest, and prior to Landsdown's statements, he was advised of his right to remain silent and to secure the services of an attorney, and of the availability of a telephone for his use. There was also testimony showing that Landsdown's statements were not induced by any promises or threats. None of Landsdown's statements was reduced to writing at that time. Landsdown and Tisdale were booked on state charges and transferred to the Saint Tammany Parish jail.

On August 16, 1963, an agent of the Alcohol and Tobacco Tax Division of the Treasury Department was notified of the apprehension of Landsdown and Tisdale. He proceeded to the parish jail to interview Landsdown and Tisdale as to possible violations of Federal law. Landsdown repeated to the Federal officer the essence of his previous statements made to the state officers. Tisdale denied having had any knowledge of the pistol until after their arrival in Louisiana.

On August 21, a complaint was filed before a United States Commissioner charging Landsdown and Tisdale with violation of 15 U.S.C.A. § 902(e). Federal officers placed them in custody and took them to New Orleans. In the office of the Alcohol and Tobacco Tax Division, after having been fully advised of his constitutional rights, Landsdown again admitted ownership and interstate transportation of the pistol, and exculpated Tisdale of any complicity in the offense. He also admitted having been previously convicted of several felonies. This statement was reduced to writing,³ but Landsdown refused to sign it until Tisdale was released. On the same day, both defendants were taken before the U. S. Commissioner, where Landsdown waived, and Tisdale demanded, a preliminary hearing. The preliminary hearing was held on August 23, and the complaint against Tisdale was dismissed on motion of the government. Landsdown thereafter signed the written statement. The written statement was introduced into evidence and read to the jury at the trial over Landsdown's objection.

At the trial, Landsdown testified that he did not know the pistol was in the car until Tisdale produced it for the officers at the police station. He stated that he and Tisdale had argued in Mississippi about Tisdale's desire to take a pistol on the trip, and he thought the gun had been left in Mississippi. He denied having made oral statements at the police station, and stated that he signed the written statement because of a promise that Tisdale would be released, and because he believed the revolver found in the car, which the officers had not permitted him to see, was an automatic that he had purchased in Mississippi. He testified that he did not know the gun found in the car was a revolver until he was furnished a copy of the information at the time of his arraignment. He denied ownership of the revolver. His stated reason for seeking Tisdale's release was that Tisdale had promised to return to Mississippi to obtain evidence of Landsdown's innocence.

We are first called upon to decide whether the government sustained its burden of proof of the corpus delicti before the admission into evidence of Landsdown's extra judicial confessions and admissions. Landsdown contends that there was no independent evidence, apart from his statements, that the pistol found in his automobile was ever outside the state of Louisiana. Consequently, the argument proceeds, the statements should not have been admitted because an essential element of the offense, interstate transportation of a firearm, was not proven without the aid of the statements. Although this position has found some support⁴ we think it overlooks the basic purpose of the rule requiring corroboration of an extrajudicial confession before its admission into evidence. The justification for such a rule was well expressed in Opper v. United States, note 4 supra, where it was said:

"In our country the doubt persists that the zeal of the agencies of prosecution to protect the peace, the self-interest of the accomplice, the maliciousness of an enemy or the aberration or weakness of the accused under the strain of suspicion may tinge or warp the facts of the confession." 348 U.S. 84, 89-90, 75 S.Ct. 158, 162.

It is thus a sound principle that requires incriminatory statements of questionable reliability made outside the presence of a judge to be corroborated by substantial, independent evidence before their admission into evidence against the accused. But the natural suspicion surrounding such statements does not justify a rule which would require, not only such corroboration as would lend credence to the statements of the accused, but also substantial evidence of every element of the offense with which he is charged. Such a rule would go beyond the requirement of crediting the confession and impose an impediment to effective law enforcement. We therefore prefer the less stringent and more reasonable requirement of corroboration of the statement itself, rather than proof of every element of the crime charged. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192; French v. United States, 5th Cir. 1956, 232 F.2d 736; see Manning v. United States, 10th Cir. 1954, 215 F.2d 945.

In the instant case, there was substantial, independent evidence, apart from Landsdown's extrajudicial statements, that Landsdown had traveled from Mississippi, that he had purchased a gun in Mississippi, that he and Tisdale were seen in a bar in Louisiana brandishing a gun, that a gun was found in the car in Louisiana, and that Landsdown was a convicted felon.⁵ The fact that some of the evidence of the corpus delicti was in the form of Landsdown's own testimony does not detract from its effectiveness in corroborating his extrajudicial confessions and admissions, for the requirement of corroboration does not apply to infrajudicial statements made by the accused. Manning v. United States, 10th Cir. 1954, 215 F.2d 945; Kaye v. United States, 7th Cir. 1910, 177 F. 147; 7 Wigmore, Evidence § 2071 at 400 (3d Ed. 1940). The independent evidence fell short of establishing all the elements of the offense in only one respect — it did not prove that the gun found in the automobile in Louisiana was the same gun that Landsdown had purchased in Mississippi. For the reasons stated above, we believe that proof of this element was not necessary in order to satisfy the threshold requirement of trustworthiness of the extrajudicial confession for purposes of admissibility, and the statements were properly admitted into evidence for a jury determination of their truth.

Landsdown contends that the firearm and tools that were taken from his car should have been excluded from evidence because they were the fruits of an unlawful search and seizure. In view of the trial court's finding that Landsdown consented to the search, the substantial evidence of such consent in the record, and the total absence of any evidence indicating that Landsdown did not consent or that his consent resulted from coercion or duress, either direct or indirect, we need not consider whether the arrest, search and seizure would have been legal in the absence of Landsdown's consent.⁶ The question whether a defendant has consented to a search and seizure of his property is one of fact, to be determined in the first instance by the trial court. United States v. Page, 9th Cir. 1962, 302 F.2d 81; see United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 140. On appeal from a judgment of conviction, the evidence is to be considered in the light most favorable to the government. Newsom v. United States, 5th Cir. 1964, 335 F.2d 237; United States v. Brown, 2d Cir. 1956, 236 F.2d 403. Viewed in that light, the evidence discloses that when first confronted by the police and asked to accompany them, Landsdown replied that he did not mind, "anything to get this straightened out." When Landsdown and the officers reached the police station, the officers asked if it was all right...