Cote v. United States

• Citation: 357 F.2d 789
• Decision Date: 11 March 1966
• Docket Number: No. 20312.,20312.
• Parties: Edmund COTE, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

357 F.2d 789 (1966)

Edmund COTE, Appellant, v. UNITED STATES of America, Appellee.

No. 20312.

United States Court of Appeals Ninth Circuit.

March 11, 1966.

George L. Albright, Christensen, Bell, Morris & Albright, Las Vegas, Nev., for appellant.

John W. Bonner, U. S. Atty., Robt. S. Linnell, Asst. U. S. Atty., Las Vegas, Nev., for appellee.

Before HAMLEY, HAMLIN and ELY, Circuit Judges.

HAMLIN, Circuit Judge.

Edmund Cote, appellant herein, was tried in the United States District Court for the District of Nevada in a court trial for violating 18 U.S.C. § 2113 (a) — armed bank robbery. He was found guilty by the district judge and on November 15, 1963, was sentenced to a term of imprisonment. No appeal was taken from this judgment. On November 5, 1964, appellant filed in the United States District Court for the District of Nevada a motion pursuant to 28 U.S.C. § 2255. For the hearing of that motion appellant was brought by order of the court from the United States penitentiary at Atlanta, Georgia, where he had been confined pursuant to the sentence, to Las Vegas, Nevada. Counsel was appointed by the court to represent him, and after a pretrial hearing at which appellant and his counsel were present, the motion was set for hearing on May 17, 1965. At the hearing, appellant called as witnesses the attorney who represented him at the time of his trial and two federal agents who interviewed him. The appellant also testified. On May 27, 1965, the district judge made findings of fact, conclusions of law, and a judgment denying appellant's motion. There was a timely appeal by appellant to this court from said denial. This court has jurisdiction under 28 U.S. C. § 1291.

The appellant in his brief specifies the following alleged errors by the district court: (1) "The Court erred in finding that there was no violation of the McNabb rule in criminal procedures and there were no confessions or admissions illegally obtained from Appellant"; (2) "The Court erred in finding that Appellant was properly arraigned"; (3) "The Court erred in finding that Appellant was not denied his right to counsel when interrogated by the FBI while a prisoner in San Diego, California, and while a federal prisoner in Clark County, Nevada after an indictment had been returned against Appellant."

The record discloses that on May 28, 1963, Cote was stopped while driving an automobile in the city of San Diego, California, by the San Diego Police for going "through a red light." While being questioned about his driver's license the officer called his headquarters by radio and was informed that appellant who had given the name of LaCarde was wanted for bank robbery in Las Vegas. Appellant was then brought to the local police station and locked up. That evening appellant was interviewed by two FBI agents. The court found that prior to any statement by appellant he had been advised by these agents of their identity and that he did not have to make a statement and that any statement he did make would be voluntary and of his own free will and could be used against him in a court of law. He was also advised that he had the right to consult an attorney, and that no promises or threats were being made to him to make a statement. Appellant was asked if he was involved in a bank robbery in Las Vegas, Nevada, on April 22, 1963, and he stated that he was not. He stated that he had been in Las Vegas somewhere around that time and that while there he had purchased a .38-caliber revolver, using the name of LaCarde. He gave as reasons for the purchase of the weapon that he had won some money in a gambling establishment in Nevada, that someone tried to get in his room at the hotel in Las Vegas, and that he had purchased the weapon to protect himself against burglars. He further stated that this revolver was now in a suitcase in his room at a hotel in San Diego. He first stated that he had come from Las Vegas to Los Angeles by airplane, but later stated that he now recalled that he had come by Greyhound bus from Las Vegas to Los Angeles and that from Los Angeles he had taken a plane to New Orleans. During the interview appellant signed a consent for a search of his hotel room and his automobile.¹ After he had signed the consent to search, appellant then said that his true name was Edmund Cote, that he was a parole violator from the state of Maine where he had been serving a life sentence for murder. He stated that he had left Maine after his parole and gone to San Francisco without the permission of his parole officer. He at all times denied that he was in any way involved in the bank robbery in Las Vegas.

The following day, May 29, 1963, he was again interviewed by the agents of the FBI in San Diego, at which time, after again being advised of his right to consult an attorney and the fact that he did not have to make any statement, in the same manner as on the previous day, he was asked if he was willing to furnish exemplars of his handwriting and he stated that he would be willing to do so. Exemplars of his handwriting were then obtained.² In the interview on May 29th appellant again denied any connection of any kind with the bank robbery in Las Vegas.

On May 29, 1963, in Las Vegas, Nevada, a complaint was issued before the United States Commissioner in Las Vegas charging appellant with having on the 22nd day of April, 1963, committed the crime of bank robbery in Las Vegas in violation of Title 18 section 2113(a) of the United States Code.

A certified copy of this complaint with a warrant of arrest attached thereto was mailed to the United States Marshal at San Diego. On the afternoon of May 31, 1963, and within fifteen minutes after the arrival of the above documents, appellant was taken before a United States Commissioner in San Diego and arraigned.

On June 14, 1963, an indictment was returned by the Grand Jury in Las Vegas charging appellant with a violation of Title 18 section 2113(a). On June 17, 1963, the United States District Court in San Diego signed an order for appellant's removal to Las Vegas. On June 28, 1963, he was interviewed by an FBI agent in Las Vegas jail. He was again advised that he did not have to make a statement and that he had a right to an attorney. In this interview appellant denied that he had committed the bank robbery charged against him and generally made the same statement concerning his activities that he had made to the FBI agent on May 28 in San Diego. On July 19, 1963, counsel was appointed to represent appellant.³

On November 3, 1963, appellant signed a written waiver of a jury trial with the consent of his lawyer, and after a court trial was found guilty of the charge against him.

Regarding appellant's contention that he was denied his right to counsel when questioned by the FBI, the court below held that "in all cases the Defendant effectively and intelligently waived his right to counsel. The Court disbelieves the Defendant's testimony to the effect that he was not told of his right to an attorney. The Court disbelieves the Defendant's testimony that he asked for an attorney when arrested and was told he could not see an attorney until the FBI agents came to see him." The court chose to believe the testimony of the FBI agents that appellant never requested an attorney and that prior to any statement by appellant he had been advised by these agents of their identity and that he did not have to make a statement, that any statement he did make would be voluntary and of his own free will and could be used against him in a court of law, and that he had the right to consult an attorney. From an examination of the record, we hold that there was ample evidence to support this finding by the district judge, and that such a finding was not clearly erroneous.

Appellant's other contentions of error rest on the Supreme Court's holding in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and Rule 5(a) of the Federal Rules of Criminal Procedure. Rule 5(a) provides:

"Appearance before the Commissioner. An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States. When a person arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith."

In McNabb, supra, the Court held that admissions made by defendants after long and repeated questioning without taking the defendants before a United...