389 F.2d 911 (9th Cir. 1968), 21278, Loux v. United States

Docket Nº:21278-A, 21599-A, 21599-B, 21599-C.
Citation:389 F.2d 911
Party Name:Richard E. LOUX and Neil Conrad Wallen, Appellants, v. UNITED STATES of America, Appellee. Vertis James BARRETT, Arthur St. Peter andHarold Oscar Thomas, Appellants, v. UNITED STATES of America, Appellee.
Case Date:February 16, 1968
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 911

389 F.2d 911 (9th Cir. 1968)

Richard E. LOUX and Neil Conrad Wallen, Appellants,

v.

UNITED STATES of America, Appellee. Vertis James BARRETT, Arthur St. Peter andHarold Oscar Thomas, Appellants, v. UNITED STATES of America, Appellee.

Nos. 21278-A, 21599-A, 21599-B, 21599-C.

United States Court of Appeals, Ninth Circuit.

February 16, 1968

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No. 21278: Ralph J. Steinberg (argued for Loux), of Berns & Steinberg, San Jose, Cal., Willard F. Jones (for Wallen), Martinez, Cal., for appellants.

Carroll D. Gray (argued), Richard Wiehl, Asst. U.S. Attys., Smithmoore P. Myers, U.S. Atty., Spokane, Wash., for appellee.

No. 21599: Arthur Kurteff (argued), W. C. Bornemeier, San Jose, Cal., Carroll D. Gray, Asst. U.S. Atty. (for Barrett), James Coyle (argued for St. Peter), Los Angeles, Cal., James P. Connelly (argued, for Thomas), Spokane, Wash., for appellants.

Carroll D. Gray (argued), John McRae, Asst. U.S. Attys., Smithmoore P. Myers, U.S. Atty., Spokane, Wash., for appellee.

Before HAMLIN, JERTBERG and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge:

In these cases there are five appeals, arising from the convictions of the five appellants under a single indictment reading as follows:

'That on or about November 22, 1964, VERTIS JAMES BARRETT, RICHARD EUGENE LOUX, DONALD MESAROS, JOHN LOUIS MULLENIX, ARTHUR ST. PETER, HAROLD OSCAR THOMAS and NEIL CONRAD WALLEN did knowingly transport in interstate commerce from Walla Walla in the Southern Division of the Eastern District of Washington to Clackamas County, Oregon, Andrew Jackson Jeppe and Cora May Jeppe who had theretofore been unlawfully seized, kidnapped, carried away and held by VERTIS JAMES BARRETT, RICHARD EUGENE LOUX, DONALD MESAROS, JOHN LOUIS MULLENIX, ARTHUR ST. PETER, HAROLD OSCAR THOMAS and NEIL CONRAD WALLEN for ransom or reward or otherwise, in violation of Sec. 1201 Title 18 USCA.'

Barrett, Loux and Wallen went to trial before a jury at Yakima, Washington on March 7, 1966. On March 9, a mistrial was ordered as to Barrett only. The trial continued as to Loux and Wallen and they were convicted and they appeal. Barrett, Thomas and St. Peter were tried before a jury at Spokane, Washington beginning on September 12, 1966. All three were convicted and they appeal.

The offense itself can be described very briefly. During the night of November 22, 1964, seven convicts, the defendants named in the indictment, escaped from the Washington State Penitentiary at Walla Walla, Washington. They kidnapped an elderly couple, Mr. and Mrs. Jeppe, seized their car, and, taking the Jeppes along, went to Oregon. Eventually, the Jeppe's car became mired in mud. The defendants abandoned the Jeppes unharmed and left in another car that they had stolen.

We consider first a problem common to all appeals, then those raised by Loux or Wallen and arising from the Yakima trial, and finally, those raised by Barrett, St. Peter, or Thomas, and arising from the Spokane trial.

1. Were the defendants entitled to the special procedural benefits available in a capital case?

No appellant raises this question, but the government, with commendable frankness, calls our attention to our recent decision in Amsler v. United States, 1967, 381 F.2d 37, 44-45. We there held that, under the rule in Smith v. United States, 1959, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041, an indictment that does not state that the victim was released unharmed charges a capital offense. That rule in applicable to the indictment in these cases. Here the rule in Smith that such an offense must be charged by indictment, not by information, was followed. We also held in Amsler that in such a case compliance with 18 U.S.C. § 3432 and with Rule 24(b), F.R.Crim.P., is mandatory, and failure to comply with

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them is plain error, requiring reversal under Rule 52(b), F.R.Crim.P. 1

These cases, however, differ from Amsler in important respects. In Amsler, '(it) was apparently conceded and understood by the court and counsel throughout the entire pre-trial proceedings that Sinatra was released unharmed. For this reason it appears that the offense was considered and tried as a non-capital offense.' (381 F.2d p. 45.). Nevertheless, under the indictment the government could have introduced evidence of harm to the victim, and we felt that the tacit understanding of the parties did not change the case from capital to non-capital. In the present cases, there was the same understanding. But it was much more than tacit. Long before the first trial, on October 27, 1965, with counsel for all parties present, the following occurred:

'THE COURT: Now, do I understand, Mr. Fransen, that there is no intention on the part of the United States at this time to ask that this be considered as a capital case. MR. FRANSEN: That is correct, your Honor. THE COURT: And you are willing to be bound by that statement now; that is the situation? MR. FRANSEN: There is no question in our minds as to that, your Honor. THE COURT: So that there is no question about that, the record now shows that the United States of America agrees that they will be bound not to ask for the death penalty in this case, and will present no evidence, as I understand it, that there was any harm to the Jeppes at any time during their alleged abduction. MR. FRANSEN: That is correct, your Honor. THE COURT: So, that simplifies that matter, in connection with separate trials and separate defenses.'

This agreement was never modified or revoked; none of the defendants' counsel objected to it. None at any time demanded the rights accorded by 18 U.S.C.§ 3432 or by Rule 24(b). We think that the court's action of October 27, 1965 made it clear, on the record, that, at least from that time on, the case was not a capital case. The government was, from that time, not free to introduce evidence that the Jeppes were harmed. As we said in Amsler, 'It is the possibility of an imposition of a death penalty under the indictment, not the evidence produced at the trial, which determines if the accused is entitled to the procedural benefits available in capital cases.' 381 F.2d at 45. Here after October 27, 1965, the death penalty was impossible. The court explicitly said so, on the record; the government agreed, on the record, to be bound by what the court said. We can see no reason or policy that would be furthered by holding that under these circumstances these were still capital cases.

We also think that counsel's acquiescence in the court's ruling and the government's commitment, coupled with their failure to assert the rights accorded them by the statute and the rule, amounts to a valid waiver of those rights. In Logan v. United States, 1892, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429, which is relied upon in Amsler, the court said in reference to the parent section 3432:

'Being enacted for his (the defendant's) benefit, he may doubtless waive it; but he has a right to insist upon it, and, if he seasonably does so, the trial cannot lawfully proceed until the requirement has been complied with.' P. 304, 12 S.Ct. p. 630. (Emphasis added.)

That principle, we think, applies here.

On both grounds, we hold that Amsler is not controlling here.

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2. The Yakima trial.

a. Loux' appeal.

(1) The grand jury testimony:

Loux' only specification of error is that the court should have granted his motion either to require the government to produce the grand jury testimony of government witnesses or to dismiss the indictment because the grand jury testimony was not available. The testimony of the witnesses before the grand jury was not recorded. Consequently, the first alternative motion could not be granted. The second was denied.

The law does not require that the testimony of witnesses before a grand jury be recorded or transcribed. Rule 6(d), F.R.Crim.P. is permissive, not mandatory. Every court that has considered the question has so held. United States v. Caruso, 2 Cir., 1966, 358 F.2d 184, 186; United States v. Cianchetti, 2 Cir., 1963, 315 F.2d 584, 591; United States v. Martel, D.C.N.Y., 1954, 17 F.R.D. 326 (cited with approval in Cianchetti, supra); United States v. Hensley, 6 Cir., 1967, 374 F.2d 341, 352; Welch v. United States, 10 Cir., 1966, 371 F.2d 287, 291. Nor is there support for the claim that failure to record grand jury testimony violates the defendants' constitutional rights. United States v. Cianchetti, supra, and United States v. Hensley, supra, are to be contrary. See also Lawn v. United States, 1958, 355 U.S. 339, 349-350, 78 S.Ct. 311, 2 L.Ed.2d 321; Costello v. United States, 1956, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397. 2

Here the government did not have 'exclusive access to a storehouse of relevant fact,' as in Dennis v. United States, 1966, 384 U.S. 855, 873, 86 S.Ct. 1840, 16 L.Ed.2d 973. The storehouse was not only empty...

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