United States v. Follette

Decision Date03 September 1971
Docket NumberNo. 794,Docket 34279.,794
Citation448 F.2d 130
PartiesUNITED STATES of America ex rel. Jose BURGOS, Petitioner-Appellant, v. Harold W. FOLLETTE, Warden, Green Haven Prison, Stormville, New York 12582, Respondent-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Milton J. Schubin, New York City (Kaye, Scholer, Fierman, Hays & Handler, New York City, Robert F. Fink, New York City, of counsel), for petitioner-appellant.

Mortimer Sattler, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for respondent-appellee.

Before LUMBARD, SMITH and KAUFMAN, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

This is an appeal from the United States District Court for the Southern District of New York, Edmund L. Palmieri, Judge, from the dismissal without a hearing of a petition for a writ of habeas corpus. We find error and remand for hearing.

Petitioner-appellant, Jose Burgos, was convicted in the former Court of General Sessions of New York County in May, 1962 of murder in the first degree and on June 22, 1962 was sentenced to life imprisonment upon the recommendation of the jury. No direct appeal was taken from the conviction.

In September, 1965 Burgos filed a writ of error coram nobis in the state courts and requested a Huntley hearing to determine the voluntariness of his confession which had been used against him at trial. That application was denied, as was a similar petition filed in 1968. Both were considered by the Appellate Division, First Department, and were likewise denied without opinion. People v. Burgos, 31 A.2d 601, 295 N.Y. S.2d 407 (1968). Leave to appeal to the New York Court of Appeals was denied on February 12, 1969. In June, 1969 this petition seeking a writ of habeas corpus was filed pro se in the District Court.

The crime for which the appellant was convicted was a particularly brutal one. Early on the evening of May 29, 1961, the appellant, who was then sixteen years of age, and three companions followed two men into the elevator of an apartment house on New York's lower east side. One of the men alighted from the elevator leaving the four boys alone with the other, one Harry Heisler. The appellant then pulled out a rifle from inside his trousers, pointed it at Heisler and said "It's a hold-up." A struggle ensued and Heisler was shot in the abdomen with Burgo's gun. There was some dispute as to whether the shot was fired intentionally or accidentally. Heisler died at Bellevue Hospital later that night.

Shortly thereafter the police arrested a number of young men who lived in the neighborhood including the appellant. According to Burgos' petition, he was taken to the police station and questioned for some seven and one half hours by relays of detectives, he was told that he would be denied food and water until he made a statement, he was refused permission to contact his family, and he was not informed of his right to remain silent or of his right to counsel. In addition, the record discloses that he was only 16 years old at the time and spoke only broken English. He was attending a special school for "socially maladjusted and emotionally disturbed children." Although he was designated as being in the eighth grade, he read on a third grade level. A written statement was secured from the appellant by an assistant district attorney at 2:58 a. m. Interestingly, in spite of appellant's language difficulty, the statement was in all but impeccable English. This statement was later introduced over the objections of defense counsel at the trial.1

It is, of course, clear that had Burgos' trial taken place after October 10, 1966, the date of the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the failure of the police to advise Burgos of his right to remain silent and to the presence of counsel would have been sufficient, by itself, to label his confession involuntary. Miranda was not, however, written on a blank slate. For many years the federal courts had examined the "totality of the circumstances" presented in each individual case where a claim of coercion was raised to determine whether due process standards were violated.2 If we examine those pre-Miranda cases where the courts have found a defendant's confession to have been coerced, we note that several of the factors present here have been given significant weight in prior cases in reaching a finding of involuntariness. In Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948) and more recently in Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962), we were instructed by the Supreme Court to take particular care when dealing with the confession of a youthful offender since it is much more likely that his will would be overborne by law enforcement officials.3 The courts have also looked with strong disfavor on refusals to permit the accused to communicate with family or friends. Cf. Gallegos v. Nebraska, 342 U.S. 55, 65, 72 S.Ct. 141, 96 L.Ed. 86 (1951); Reck v. Pate, 367 U.S. 433, 441, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961). In Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963), the Court found that holding a defendant incommunicado until he made an incriminating statement was, by itself, sufficient to invalidate his confession.

The petitioner at first resisted making a written statement and gave in only after consistent denials of his requests to call his wife, and the conditioning of such outside contact upon his accession to police demands. Confronted with the express threat of incommunicado detention and induced by the promise of communication with and access to family Haynes understandably chose to make and sign the damning written statement; given the unfair and inherently coercive context in which made, that choice cannot be said to be the voluntary product of a free and unconstrained will, as required by the Fourteenth Amendment. 373 U.S. at 514, 83 S.Ct. at 1343.

Similarly, Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966) and Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), reemphasized in denying retroactivity to Miranda that the absence of the Miranda warnings in pre-1966 convictions would nevertheless be a "significant factor in considering the voluntariness of the statements later made." 384 U.S. at 740,4 86 S.Ct. at 1764.

As the appellant points out, the present case is factually quite similar to the situation presented to the Fourth Circuit sitting en banc in Ledbetter v. Warden, 368 F.2d 490 (1966), cert. denied, 386 U.S. 971, 87 S.Ct. 1162, 18 L.Ed.2d 130 (1967). There the defendant was 19 years old and had completed the eighth grade. His first encounter with law enforcement officials was when he was arrested after having been implicated in a murder investigation. He was placed in a small room at the police station and was denied the opportunity to communicate with his family. He was not advised of his right to remain silent or to have the assistance of counsel. Later that evening, when confronted by the confession of a co-defendant, Ledbetter signed a written statement acknowledging his participation in the crime. The Court of Appeals noted:

"This youth was alone in the hands of the police, and his requests to contact his family were refused. He was not told of his right to maintain silence, or that his statements might be used against him. And he was not informed of his right to an attorney. Considered against the background of Ledbetter\'s age and education we think the District Court correctly found that the confessions were not voluntarily given." 368 F.2d at 492.

If anything, the facts alleged in the present case are more egregious than those in Ledbetter. Here we are concerned with a boy of 16 (not 19) who had also completed the eighth grade but read on a third grade level and spoke little English, who also asked to call his family and was refused, who additionally was denied food and water until he made a statement, who had his mother turned away, and who likewise was not advised of his constitutional rights. If these circumstances are established at a hearing, there is no doubt that the appellant's confession was fatally tainted.

We therefore remand the case to the District Court. If in the course of a hearing the appellant is able to substantiate his allegations as to the circumstances surrounding his interrogation and confession, then the writ should issue.

LUMBARD, Circuit Judge:

I dissent.

The record does not...

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4 cases
  • State v. Young
    • United States
    • Kansas Supreme Court
    • July 23, 1976
    ... ... (United States v. Bland, 153 U.S.A.pp.D.C. 254, 472 F.2d 1329 (1972), cert. denied, 412 ... Page 910 ... (Compare United States ex rel. Burgos v. Follette, 448 F.2d 130 (2nd ... Page 911 ... Cir. 1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2043, 32 ... ...
  • United States v. Ramsey
    • United States
    • U.S. District Court — Western District of Missouri
    • December 18, 1973
    ... ... Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962) or Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L. Ed. 224 (1948), are simply not present in this case. See, also, Thomas v. State of North Carolina, 447 F.2d 1320 (4th Cir. 1971); United States ex rel. Burgos v. Follette, 448 F.2d 130 (2d Cir. 1971), and compare Cotton v. United States, supra, and Makarewicz v. Scafati, 438 F.2d 474 (1st Cir. 1971), cert. den. 402 U.S. 980, 91 S.Ct. 1685, 29 L.Ed.2d 145 ...         Consequently, for these reasons, defendant's first contention cannot be sustained ... ...
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    • United States
    • U.S. District Court — Southern District of New York
    • February 7, 1972
    ...significant factors to be considered in determining whether petitioner's statements were voluntary. In United States ex rel. Burgos v. Follette, 448 F. 2d 130, 132 (2d Cir. 1971), the court "In Haley v. Ohio, 332 U.S. 596 68 S.Ct. 302, 92 L.Ed. 224 (1948) and more recently in Gallegos v. Co......
  • People v. McFadden
    • United States
    • United States Appellate Court of Illinois
    • September 16, 2021
    ... ... was involuntary ... ¶ ... 54 Under the fifth amendment of the United States ... Constitution, which applies to the states through the ... fourteenth ... 2008); United ... States ex rel. Burgos v. Follette, 448 F.2d 130, 132 (2d ... Cir. 1971); Williams v. Peyton, 404 F.2d 528, 531 ... ...

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