407 F.2d 39 (9th Cir. 1969), 21736, Camacho v. United States

Docket Nº:21736.
Citation:407 F.2d 39
Party Name:Robert CAMACHO, Appellant, v. UNITED STATES of America, Appellee.
Case Date:February 05, 1969
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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407 F.2d 39 (9th Cir. 1969)

Robert CAMACHO, Appellant,

v.

UNITED STATES of America, Appellee.

No. 21736.

United States Court of Appeals, Ninth Circuit.

February 5, 1969

         Rehearing Denied June 20, 1969.

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         John J. Flynn (argued), David C. Schutter (argued), Charles D. Roush, Phoenix, Ariz., for appellant.

         Lawrence Turoff (argued), Asst. U.S. Atty., Edward E. Davis, U.S. Atty., Morton Sitver, John L. Augustine, Asst. U.S. Attys., Phoenix, Ariz., for appellee.

         Before HAMLIN and DUNIWAY, Circuit Judges, and BOLDT, [*] District judge.

         BOLDT, District Judge:

         This is an appeal by Robert Camacho from a three-count conviction, following a jury trial, of federal bank robbery and related offenses in violation of 18 U.S.C. § 2113(a), (d) and (e), committed in Phoenix, Arizona, on or about October 19, 1962. Appellant was acquitted by the jury of the charge laid in the fourth count of the superseding indictment, alleging appellant had unlawfully abducted William Clore while seeking to avoid apprehension for the above offenses. District Court jurisdiction was founded on 18 U.S.C. § 3231. This court has jurisdiction under 28 U.S.C. § 1291. We affirm.

         Appellant makes five specifications of error: (1) denial, in part, of appellant's motions to suppress evidence; (2) rejection as evidence of certain exhibits relied on by appellant for impeachment purposes; (3) unconstitutionality of 18 U.S.C. § 2113(e) as it relates to appellant's right of jury trial; (4) denial of appellant's motion for change of venue based on adverse publicity; (5) comment by the prosecution attorney in closing argument on appellant's exercise of his right not to testify.

         At approximately 12:30 p.m., October 19, 1962, a lone gunman held up a branch of the Valley National Bank, Phoenix, Arizona, and forced Robert Hasseries, the bank manager, to accompany him in effecting escape. Shortly after the gunman and Hasseries departed, another bank officer, William Clore, left the bank premises. Hasseries was released shortly after the kidnapping; Clore was never seen alive again. An investigation by the Federal Bureau of Investigation produced few immediate results and was continuing at the time the appellant was taken into custody almost three years later. The present appeal is from appellant's conviction of this offense.

         At approximately 2:50 p.m., October 15, 1965, appellant was shot in the leg by police officers while attempting to escape from an abortive bank robbery at a branch of the Valley National Bank, Phoenix, Arizona. Appellant was taken to a hospital and treated for his injury, and during this time he was interrogated by an FBI agent. He was discharged by a doctor at approximately 7:15 p.m. and taken to the United States Marshal's office at the Federal Building in Phoenix, to await an appearance before the United States Commissioner. That same evening, before the Commissioner, appellant waived preliminary hearing, and was then required to participate in two identification line-ups. Following the line-ups, appellant was taken by automobile to the Federal Detention Center, Florence, Arizona.

         The first specification of error is predicated on denial by the trial court of appellant's various motions to suppress

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certain incriminating statements made by appellant after he had been treated and medically discharged from the hospital. All statements made by appellant during his interrogation at the hospital were suppressed, but appellant contends these initial statements so 'tainted' his later incriminating remarks as to render them similarly objectionable, relying on Silverthorne Lumber Company v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, 24 A.L.R. 1426 (1920); Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), and like authority.

          To ascertain the precise factual context in which appellant's statements were made and the legal principle applied thereto, we directed the trial court to supplement the record with more detailed factual findings and legal conclusions concerning appellant's suppression motions. The supplemented record is now before us and this specification of error has been briefed and argued a second time. The statements by appellant, resulting from questioning in the emergency ward of the hospital, were at first held admissible by the trial court, following a hearing conducted six months prior to the decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although trial was scheduled for a date preceding Miranda, it was continued to October 24, 1966, at which time the motion to suppress was renewed and granted as to appellant's statements at the hospital. In view of the trial date, the requirements of Miranda became directly applicable to appellant's case by the time the motion to suppress was renewed. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).

         The basis for granting appellant's motion regarding statements made at the hospital was language used in the then recent decision of Miranda, supra, decided June 13, 1966. Prior to any interrogation by an FBI agent at the hospital, appellant was advised that he need make no statement at all, that any statement he did make could be used against him in court, and that he had a right to counsel. 1 This warning was repeated at least once at the hospital and twice in the presence of the United States Commissioner after appellant was discharged from the hospital. In addition, appellant was advised at least once at the hospital and twice by the Commissioner that if he could not afford to employ counsel an attorney would be appointed to represent him.

         However, upon renewal of the motion to suppress on the day of trial, five months after Miranda, the trial court accepted appellant's contention that, in addition to the foregoing express warnings, it was required that the right to have counsel present be more specifically explained by the interrogating officer as including not only the presence of counsel, but counsel's presence 'at the time of interrogation.' The trial court also accepted appellant's...

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