Cotton v. United States

• Decision Date: 21 July 1971
• Docket Number: No. 20306.,20306.
• Citation: 446 F.2d 107
• Parties: Moses COTTON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

446 F.2d 107 (1971)

Moses COTTON, Appellant, v. UNITED STATES of America, Appellee.

No. 20306.

United States Court of Appeals, Eighth Circuit.

July 21, 1971.

Robert J. Brown, Little Rock, Ark., for appellant.

Richard M. Pence, Jr., Asst. U. S. Atty., W. H. Dillahunty, U. S. Atty., Little Rock, Ark., for appellee.

Before VOGEL, MEHAFFY and LAY, Circuit Judges.

MEHAFFY, Circuit Judge.

This is an appeal in forma pauperis by Moses Cotton, fifteen years of age at the time, from a judgment of the district court finding that defendant was a juvenile delinquent and committing him to the custody of the Attorney General for and during his minority. The issues presented by this appeal are (1) the admissibility of defendant's statement into evidence and (2) whether 18 U.S.C. § 5033 is invalid as unconstitutional by reason of depriving defendant of a jury trial. We affirm.

On March 11, 1970 the defendant, Moses Cotton, age fifteen, was arraigned before Judge Henley, Chief Judge, United States District Court for the Eastern District of Arkansas. Pursuant to 18 U.S.C. § 5033, consent to be proceeded against as a juvenile delinquent was signed by defendant and filed in open court. An information was filed charging defendant, as a juvenile delinquent, with violation of 18 U.S.C. § 1708. The information alleged that on or about February 1, 1969 defendant stole from a United States Post Office at Dumas, Arkansas a letter containing United States Treasury Check No. 86,540,872, payable to Will Pittman in the sum of $69.63. Defendant, who was represented by capable appointed counsel, entered a plea of not guilty.

On the afternoon of March 11, 1970 a hearing was held on defendant's motion for production of documents and suppression of evidence. Defendant was granted discovery of all statements and documents proposed to be used as evidence. After hearing testimony, the court denied the motion to suppress a statement taken from defendant by Harold Duke, a Secret Service Agent. On cross-examination, defendant identified his statement and signature and acknowledged that Agent Duke did not threaten him in order to obtain the statement. At the close of the hearing, the court was informed that defendant would raise the constitutional issue of whether 18 U.S.C. § 5033 denied defendant his right to trial by jury. Section 5033 of the Federal Juvenile Delinquency Act, 18 U.S.C. § 5033, provides that the juvenile delinquency proceedings "shall be without a jury" and that the consent required to be executed by the juvenile "shall be deemed a waiver of trial by jury." The consent executed by defendant provided that defendant "consents that he be tried to the court without a jury."

On March 18, 1970 defendant filed a written motion to declare 18 U.S.C. § 5033 unconstitutional and for a trial by jury. The following day the court denied the motion for a jury trial.

Defendant was tried to the court without a jury on April 2, 1970. During the trial the motion to suppress was renewed and again overruled. Defendant was found to be a juvenile delinquent and committed to the custody of the Attorney General as above stated.

There is no dispute as to the facts which support the adjudication of juvenile delinquency. On August 20, 1969 Agent Harold Duke went to Dumas, Arkansas to investigate the theft of five United States Treasury checks from individual boxes in the United States Post Office at Dumas. One of the checks being investigated was United States Treasury Check No. 86,540,872 payable to Will Pittman in the sum of $69.63. A postal inspector had given Agent Duke the names of two suspects, Cleveland Robinson and the defendant, Moses Cotton. The local police officers were unaware that Duke was coming to Dumas. When he arrived in Dumas, Agent Duke contacted the Dumas Chief of Police but was unable to obtain any assistance in locating defendant. Agent Duke then went to the Cotton residence. His mother did not know where Moses was but assumed that he was in town. Defendant's older brother, Lee Cotton, age eighteen, who was also at the home, offered to help Agent Duke find Moses and the other suspect, Cleveland Robinson. Agent Duke told Lee that he wanted to talk to Moses and two of his older brothers as he had heard that they might be involved with the checks. Lee Cotton first located Cleveland Robinson who, after being advised of his rights, was interviewed by Agent Duke in an unlocked storage room at the Dumas City Hall. Near the conclusion of the interview, Lee Cotton brought his brother, the defendant, Moses Cotton, to City Hall. Prior to the interview with defendant, a statement was read to defendant advising him of all of his constitutional rights. Defendant read the form and signed it. No city police officers nor any other persons were present. The interview lasted about two hours. Defendant was photographed and fingerprinted and a personal history and handwriting exemplars were taken. In the course of the interview defendant admitted that he stole the Will Pittman check from an unlocked box in the Post Office, that he gave this check to Cleveland Robinson who cashed it at a Sterling store while he waited across the street, and that defendant received $15.00 out of the proceeds. This oral admission was put in writing by Agent Duke. Defendant signed the statement and at the bottom wrote that he had read the statement and that it was true, misspelling the word "true."

1. Whether defendant's statement was admissible in evidence.

Defendant argues that he was "mentally crushed" by the acts of the state law enforcement officers which resulted in a statement being given to the federal agent. The acts he refers to are several arrests by the state officers and the statement by one of the state officers that someone was coming to see him and that he had "better tell." The testimony at the hearing is to the effect that Agent Duke took the statement on Wednesday, August 20, 1969. Defendant testified that he was not arrested shortly before Agent Duke talked to him, but that he was arrested on Saturday after Agent Duke talked to him, and that the statement of the local police officer was made on that Saturday. The record also shows that the arrests were for stealing state checks, not federal checks, and for fighting, and were in no way related to the investigation by Agent Duke. There was no concerted action between Agent Duke and the local officers and the district court so found. In short, there is no evidence to support defendant's contention that the local investigations had an impact on the federal investigation and there is no evidence of abuse or coercion at all by the Secret Service Agent. The facts relied on in Gallegos v. Colorado, 370 U.S. 49, 82 S. Ct. 1209, 8 L.Ed.2d 325 (1962); Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); and Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), to set aside a conviction are absent here. In the present case the record shows no physical or mental force was used on defendant. There was no long detention period. In fact, he was released after the two-hour interview by Duke. At the hearing on March 11, 1970 defendant...