Bray v. United States

• Decision Date: 24 May 1962
• Docket Number: No. 16835.,16835.
• Parties: Herbert W. BRAY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

113 US App. DC 136, 306 F.2d 743 (1962)

Herbert W. BRAY, Appellant, v. UNITED STATES of America, Appellee.

No. 16835.

United States Court of Appeals District of Columbia Circuit.

Argued April 4, 1962.

Decided May 24, 1962.

Supplemental Opinion July 26, 1962.

Mr. John A. McGuinn, Washington, D. C. (appointed by this court) for appellant.

Mr. William H. Collins, Jr., Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Nathan J. Paulson, and Harold H. Titus, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before EDGERTON, BAZELON and BASTIAN, Circuit Judges.

BAZELON, Circuit Judge.

On November 4, 1960, appellant was arrested in the District of Columbia while driving a 1960 Lincoln Continental Mark V convertible automobile. The car had been stolen six days earlier in Greensboro, North Carolina. After his arrest, appellant was apparently interrogated at the Auto Squad of the Metropolitan Police Department between about 7:45 a. m. and 12:50 p. m.,¹ when he was brought before a Commissioner for the preliminary hearing to which he was entitled "without unnecessary delay." Fed.R.Crim.P. 5(a), 18 U.S.C. During the questioning, appellant complained of stomach pains — a complaint which he subsequently reiterated to the Commissioner, who recommended medical treatment. After the preliminary hearing, appellant was questioned for a half to three quarters of an hour longer. Finally, he signed a statement admitting that he had traveled from Washington, D. C. to Greensboro, North Carolina, on October 29, 1960, had stolen the Lincoln Continental automobile in which he was arrested, and had transported it back to the District.

Appellant was subsequently indicted for transporting a motor vehicle in interstate commerce "knowing the same to have been stolen." 18 U.S.C. § 2312 (1958). Since appellant was indigent, the District Court appointed counsel who promptly obtained an order for a mental examination at St. Elizabeths Hospital to determine appellant's competence to stand trial. D.C.Code § 24-301 (1961). Pursuant to that examination, appellant was found incompetent. About six months later, the hospital certified that his competency had been restored and he was ordered to stand trial.

At trial, the Government presented testimony relating to the theft of the car and the circumstances of appellant's arrest. It also introduced Bray's written confession under circumstances described later. Notwithstanding the determination of mental incompetency after indictment, Bray did not raise the defense of insanity. Instead he relied solely on his wife's testimony that he had been in Washington, D. C., on October 29, 1960, when the car was stolen. The jury found him guilty, and he was sentenced to six to eighteen months' imprisonment. Shortly after imposition of sentence, appellant was transferred to St. Elizabeths Hospital, presumably because he was mentally ill. He has now served the minimum sentence and is still in St. Elizabeths.

Upon conviction appellant applied to the District Court for leave to appeal in forma pauperis. The court marked his application: "Denied — not good faith, i. e., no substantial question, and in my judgment frivolous." The United States Attorney opposed the application on the ground that the questions presented were "patently frivolous." Appellant thereupon applied to this court. We granted leave to appeal and appointed new counsel to represent appellant.

Three grounds for reversal are urged: (1) that the evidence at trial was insufficient to convict in that the Government failed to corroborate Bray's confession with independent evidence tending to establish each element of the crime; (2) that the trial court improperly instructed the jury that they might infer from appellant's unexplained possession of the stolen car that he had committed the offense charged; and (3) that the trial court erroneously refused to grant appellant a hearing out of the presence of the jury on the question of the admissibility of his confession. We discuss these contentions below.

(1) Appellant contends that our decision in Forte v. United States, 68 App.D.C. 111, 94 F.2d 236, 127 A.L.R. 1120, affirmed on other grounds, 302 U.S. 220, 58 S.Ct. 180, 82 L.Ed. 209 (1937), requires corroboration of his confession "embracing substantial evidence of the corpus delicti and the whole thereof." 68 App.D.C. at 115, 94 F.2d at 240. Since Forte, however, the Supreme Court has held in Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954), that "corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti. It is necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement. * * * It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth. Those facts plus the other evidence besides the admission must, of course, be sufficient to find guilt beyond a reasonable doubt." 348 U.S. at 93, 75 S.Ct. at 164. We think that under Opper and subsequent cases in this court,² appellant's possession of the stolen car coupled with his failure to show a lawful transfer was sufficient corroboration since it tended "to establish the trustworthiness of the statement."³ Hence we conclude that there was enough evidence to sustain the jury's verdict.⁴

(2) Appellant complains that the trial court erred in instructing the jury, over objection, that they might infer from appellant's possession of the automobile shortly after it was stolen that he was guilty of the offense charged. The instruction reads:

"There is another principle of law which you have for your consideration in this case and that is the principle known as possession of recently stolen goods. If you find that this defendant was in possession of this automobile, Lincoln Continental, and that that vehicle had been recently stolen, and it had been stolen in North Carolina, and you further find it to be in the District of Columbia, and you further find that it was in fact being driven by this defendant, then you may, if you see fit to do so, infer therefrom that this defendant is guilty of the offense with which he is charged, unless you find that he has explained to your satisfaction his possession of the vehicle in question on the date in question and under the circumstances stated. The Court states to you that you are not required to so infer from the facts, but you may infer unless he has explained, or the defense has explained to your satisfaction his possession in the District of Columbia on the date in question.

Now there is another principle of law. You are not to infer any guilt on the part of the defendant by failure of the defendant to take the stand. He is not required to take the stand."

Appellant's attack rests on Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946).

At Bollenbach's trial for transporting securities in interstate commerce knowing them to have been stolen,⁵ the trial court charged the jury:

"I say to you that if the possession was shortly after the bonds were stolen, after the theft, it is sufficient to justify the conclusion by you jurors of knowledge by the possessor that the property was stolen. And just a moment — I further charge you that possession of stolen property in another State than that in which it was stolen shortly after the theft raises a presumption that the possessor was the thief and transported stolen property in interstate commerce, but that such presumption is subject to explanation and must be considered with all the testimony in the case. 326 U.S. at 609, 66 S.Ct. at 403."

When that case reached the Supreme Court, the Government conceded that the presumption "offended reason" and was not a "fair summary of experience."⁶ The Court agreed, held the instruction "simply wrong,"⁷ and reversed the conviction.

On its face, Bollenbach would appear to condemn the charge attacked here. But time has not treated the Bollenbach decision kindly. Repeatedly, courts of appeals have sustained similar instructions in the face of vigorous protests based upon Bollenbach. See, e. g., Battaglia v. United States, 205 F.2d 824 (4th Cir., 1953); Prince v. United States, 217 F.2d 838 (6th Cir., 1961); Morandy v. United States, 170 F.2d 5 (9th Cir., 1948), cert. denied 336 U.S. 938, 69 S.Ct. 741, 93 L.Ed. 1097 (1949). And the Supreme Court has done nothing to disturb the interment of its decision. Hence Bollenbach's vitality is doubtful, to say the least.

Typical of the courts of appeals' treatment of the decision is Judge Soper's statement in Battaglia v. United States, 205 F.2d 824, 827 (4th Cir., 1953):

"We do not think that that decision requires us to hold that possession of a stolen vehicle in the state to which it has been recently transported gives rise to no inference that the possessor participated in the transportation, in the absence of some explanation on his part. The decision does not repudiate the rule established by a myriad of decisions that possession of recently stolen goods will support an inference that the possessor is guilty of the theft; and if this inference be tenable, it is equally reasonable to infer that the supposed thief engaged in the removal of the stolen property to the point where it was found in his possession. It seems absurd to us to say that the possession of a stolen car in the state of destination gives rise to an inference that the possessor stole the car in the state of origin, but permits no inference that he was a party to the asportation."

The courts have usually read Bollenbach to prohibit a presumption, but not an inference, that one found in possession of property shortly after it was stolen was the thief. Compare Barfield v. United States, 229 F.2d 936 (5th Cir., 1956), with Herman v. United States, 289 F.2d 362 (5th Cir.), cert. denied...