United States v. Deaton

Decision Date20 October 1972
Docket NumberNo. 72-1197.,72-1197.
Citation468 F.2d 541
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James Delmore DEATON, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

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Maynard E. Cush, Shreveport, La., (court-appointed), for defendant-appellant.

Donald E. Walter, U. S. Atty., D. H. Perkins, Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge; GODBOLD and SIMPSON, Circuit Judges.

GODBOLD, Circuit Judge:

Appellant was convicted at a jury trial under two counts, each alleging violation of 18 U.S.C. § 1072,1 by harboring and concealing an escaped prisoner, and given maximum sentences of three years on each count to be served consecutively. The conviction is questioned on several grounds, and the sentences on the ground that the separate and consecutive sentences were imposed for a single offense. We affirm the conviction, but agree that only a single sentence could be imposed and, therefore, remand for resentencing.

The wording of the counts is identical with the exception that each count names a different person as the escapee that Deaton allegedly harbored and concealed. The two escapees, Pickle and Smygelski, were fugitives from the federal correctional institution at Texarkana, Texas. There was evidence from which the jury could infer that they planned, carried out, and continued their escape as a joint undertaking. They escaped the same night, and were discovered to be missing at the same bed check. They traveled from Bossier City, Louisiana, to Shreveport, Louisiana, at the same time in the same car furnished by Deaton. In Shreveport, Deaton provided them with food and lodging at the same place and over the same period of time. Over objection, evidence was admitted that Deaton had himself been committed at the Texarkana institution and released just seven days before Pickle and Smygelski escaped. There was other evidence from which the jury could infer that Deaton along with the two escapees planned and participated in acts toward the commission of an armed robbery for the purpose of providing the escapees with funds to finance their continued flight.

I. The conviction

(1) The District Court, over objection, permitted introduction of evidence showing that Deaton had been incarcerated at Texarkana with the two escapees, and showing the precise time and place of his release seven days prior to their escape. This was not improper use of evidence of Deaton's prior criminal conviction for the purpose of showing criminal disposition. The evidence was independently probative as circumstantial evidence of the offense charged, tending to prove not only that Deaton had knowledge that Pickle and Smygelski were escapees, which is an element of the offense, but also that he was in the vicinity of Shreveport at the time during which the harboring took place. It was admitted for that proper limited purpose, and a proper cautionary instruction was given. In Andrews v. United States, 309 F.2d 127 (5th Cir.), cert. denied, 372 U.S. 946, 83 S.Ct. 939, 9 L.Ed.2d 970 (1963), a Dyer Act case, the prosecutor was permitted to refer in his opening statement to the fact that defendant was in jail in Texas immediately prior to the alleged offense, and evidence to that effect was admitted. We held there was no error since

The purpose of such testimony was not to prejudice the jury, but to place the appellant in the vicinity of the crime at the time it was committed. . . .
If the evidence of incarceration has a direct tendency to prove the particular crime for which the accused is indicted, it is relevant on a basis other than the probability of guilt based on a general criminal disposition. It is relevant and proper, since it tends to identify the accused with a specific crime . . . .

309 F.2d at 129.

(2) Deaton's parole officer testified, over objection, to statements made to him by Deaton, tending to incriminate Deaton on the harboring and concealing charge, uttered in response to direct interrogation by the parole officer when Deaton was in custody, and without the officer having given Deaton the warnings required by Miranda. We have considerable doubt as to the propriety of even calling the parole officer as a witness for such a purpose. But, pretermitting that, we have no doubt that the testimony was inadmissible unless the officer gave prior Miranda warnings. A parolee is under heavy psychological pressure to answer inquiries made by his parole officer, perhaps even greater than when the interrogation is by an enforcement officer. The use of admissions extracted in this manner from the parolee, in his trial on charges based on the criminal conduct inquired about, raises an issue significantly different from that in United States v. Johnson, 455 F.2d 932 (5th Cir. 1972). There we held that because a parole revocation hearing was not an adversary or a criminal proceeding but rather was an administrative hearing wherein the exclusionary rule has no application, prior Miranda warnings are not required as a condition to the admission in evidence at the revocation hearing of statements made by the parolee to the parole officer. In this instance, however, the error was not reversible. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). On the preceding day Deaton, after having been given proper Miranda warnings, had made verbal statements to police officers incriminating himself in connection with the proposed robbery to gain funds for the escapees. Subsequent to the parole officer's interrogation, the verbal statements which Deaton had earlier made to the police were reiterated by Deaton in a formal recorded statement. Thus, the statements to the parole officer were merely cumulative of evidence from other sources, including both direct evidence and Deaton's own earlier voluntary statements to the police officers.

(3) There was no error in denial of Deaton's motion for compulsory process for witnesses. Of the six persons listed in the motion, Bonner appeared and testified, Peyton's proposed testimony would have been inadmissible as hearsay, and the proposed testimony of the other four would have been properly excluded as irrelevant to the charges.

(4) The trial judge gave this oral charge:

The defendant is under no affirmative duty to volunteer information he may have had as to his knowledge of the whereabouts of a fugitive escapee. On the other hand, if asked by a law enforcement officer whether he knows the whereabouts of a fugitive, he must truthfully answer if he has such knowledge. In other words, did the defendant play a part in covering up and assisting the flight after the escape of Smygelski and Pickle?

We need not rule on whether the failure to truthfully answer may give rise to guilt of concealing, see United States v. Foy, 416 F.2d 940 (7th Cir. 1969), because, this charge, if error, was not reversible error. There was clear and convincing evidence of Deaton's acts in transporting, and finding and procuring lodging for the two escapees, which without regard to any failure to divulge information, sufficiently established all elements of the offense.

We consider it unnecessary to discuss two written charges requested by Deaton and refused, other than to say that they were properly refused because each contained an erroneous statement of law.

(5) Deaton insists that state district Attorney Lutz, called as a government witness, improperly commented on Deaton's assertion of his fifth amendment privilege against self-incrimination at a prior criminal trial in state court. The defendant in that trial was one Stump, and the charges against him related to the robbery planned to raise funds for the escapees. Deaton's claim is not supported by the record. On direct examination by the government Lutz was asked about the Stump prosecution, without objection by Deaton, and in his answer stated that Pickle and Smygelski claimed the fifth amendment when called as witnesses....

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