Gregory v. United States, 8643.

• Decision Date: 15 September 1966
• Docket Number: No. 8643.,8643.
• Citation: 364 F.2d 210
• Parties: Aaron Bruce GREGORY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

364 F.2d 210 (1966)

Aaron Bruce GREGORY, Appellant, v. UNITED STATES of America, Appellee.

No. 8643.

United States Court of Appeals Tenth Circuit.

July 19, 1966.

Rehearing Denied September 15, 1966.

Jon D. Boltz, of Wilson & Boltz, Denver, Colo., for appellant.

Donald E. Cordova, Asst. U. S. Atty., Denver, Colo. (Lawrence M. Henry, U. S. Atty., Denver, Colo., on the brief), for appellee.

Before PICKETT, BREITENSTEIN and HICKEY, Circuit Judges.

HICKEY, Circuit Judge.

On December 6, 1965, a jury found the appellant guilty, and the United States District Court for the District of Colorado sentenced him for a violation of Title 18, U.S.C. § 2312, commonly known as the "Dyer Act."

The appellant, suspected of operating a motor vehicle bearing stolen license plates, was arrested in Pueblo, Colorado, on August 27, 1965, at about 9:00 P.M. He was then taken to the city jail in Pueblo, Colorado, and placed in a holdover cell. While the officers were examining his personal belongings, appellant called to them from the holdover cell and spontaneously volunteered: "I can save you some trouble. I stole the car in Wichita, Kansas." On the following day, which was Saturday, in the custody of Captain Walker of the Pueblo Police Force, additional spontaneous admissions were made regarding the theft and transportation of the car. The Pueblo police called in an agent of the Federal Bureau of Investigation and at or about noon, the agent interviewed the appellant who had been advised of his rights pursuant to the common practice of the Federal Bureau of Investigation. A Sunday intervened, and on the following day, August 30, 1965, appellant was taken before the United States Commissioner in Pueblo, Colorado, whereupon he requested a preliminary hearing and the appointment of counsel. Counsel was immediately provided, and at the hearing on September 3, 1965, in Pueblo, probable cause was found. On October 20, 1965, an indictment was returned by the Grand Jury, and the trial was subsequently held on December 6, 1965.

The only evidence introduced during the course of the trial was presented by the Government. It established that the motor vehicle had been stolen in Wichita, Kansas, on August 17, 1965, and that it had been recovered in the possession of the appellant in Pueblo, Colorado, on August 27, 1965. In addition to this, the spontaneous voluntary admissions to the police officers and the substance of the interview with the F.B.I. agent were offered in evidence, and upon objection, a voir dire examination followed outside the presence of the jury. During the course of the voir dire examination, it appeared that the appellant denied ever having made a statement to anyone regarding the vehicle or his possession of it and contended that he had constantly requested a lawyer after his arrest.

The District Judge presiding at the voir dire hearing considered all the testimony and observed the witnesses, passed upon their credibility, and found the spontaneous admissions and the agent's interview to be voluntary. The Court then permitted the testimony of the officers and the F.B.I. agent to be heard by the jury. The government rested its case. The appellant moved for a Judgment of Acquittal, which was denied and thereafter rested his case without having introduced any evidence on his behalf.

The jury found appellant guilty of the offense charged, whereupon Notice of Appeal was immediately filed. The appellant raised the following objections: (1) that he had been denied assistance of counsel;¹ (2) that there had been unnecessary delay in bringing him before a Commissioner pursuant to Rule 5(a), Federal Rules of Criminal Procedure²; (3) that there was not sufficient evidence upon which to sustain a verdict without the voluntary admissions and agent's interview; and (4) that a fatal variance existed in the dates alleged in the complaint and the information, and that based upon these alleged defects, the trial court should have granted the motion of acquittal.

A unique defense theory is presented considering all the evidence given, insofar as appellant steadfastly maintains that he made no admissions or statements to the officers, at the same time insisting that the statements, if made, were obtained in violation of his rights.

The first objection is satisfied by a reading of Rule 44(a), Federal Rules of Criminal Procedure. There is no conflict in the evidence regarding the fact that appellant, being financially unable to obtain counsel, was assigned counsel to represent him at every stage of the proceeding from his initial appearance before the Commissioner through appeal.³

The second objection directs itself to Rule 5(a), Federal Rules of Criminal Procedure, wherein an arresting officer is directed to take the arrested person without...