Dearinger v. United States, 20443.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 378 F.2d 346
• Docket Number: No. 20443.,20443.
• Parties: Jesse Eugene DEARINGER, Appellant, v. UNITED STATES of America, Appellee.
• Decision Date: 27 April 1967

378 F.2d 346 (1967)

Jesse Eugene DEARINGER, Appellant,
v.
UNITED STATES of America, Appellee.

No. 20443.

United States Court of Appeals Ninth Circuit.

April 27, 1967.

Jesse Eugene Dearinger, in pro. per.

Eugene G. Cushing, U. S. Atty., Robert Williams, Charles W. Billinghurst, Asst. U. S. Attys., Tacoma, Wash., for appellee.

378 F.2d 347

Before JERTBERG and MERRILL, Circuit Judges, and MATHES, District Judge.

MERRILL, Circuit Judge:

Appellant, convicted in 1963 of bank robbery and assault during a bank robbery (18 U.S.C. § 2113(a) and (d)), appealed to this court and secured a reversal for failure of the District Court to allow him to call witnesses against the advice of his counsel. Dearinger v. United States, 344 F.2d 309 (9th Cir. 1965). Upon retrial he was again found guilty and sentenced, and has again appealed. The case involves robbery of the University Place branch of the National Bank of Washington, near Tacoma, Washington, on November 21, 1962.

Prior to his second trial, appellant moved to suppress all evidence traceable to his having been subjected to a police lineup without benefit of counsel. (At his trial no direct evidence of the lineup was introduced, but he was identified by all witnesses who had picked him out of the lineup.) This court has recently held that lack of counsel at lineup does not constitute a violation of constitutional rights. Gilbert v. United States, 366 F.2d 923 (9th Cir. 1966), cert. granted, Gilbert v. California, 384 U.S. 985, 86 S.Ct. 1902, 16 L.Ed.2d 1003 (1966).

Appellant contends, however, that his lineup was illegal as the product of an illegal arrest, relying upon Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); see also Gatlin v. United States, 117 U.S.App. D.C. 123, 326 F.2d 666 (D.C.Cir.1963); Bynum v. United States, 104 U.S.App. D.C. 368, 262 F.2d 465 (D.C.Cir.1958).

The arrest here was not illegal. Appellant relies on the fact that while it was pursuant to warrant, the complaint upon which the warrant was issued was insufficient to establish probable cause since it recited only uncorroborated hearsay. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1957).

However, upon appellant's motion to suppress, an affidavit of the F.B.I. agent in charge was filed, establishing that there was probable cause sufficient to support a warrantless arrest.¹ Such an arrest is valid despite an invalid warrant. Ferganchick v. United States, 374 F.2d 559 (9th Cir. 1967); Bell v. United States, 371 F.2d 35 (9th Cir. 1967).

Appellant asserts that the affidavit is irrelevant since the affiant was not the person making the arrest. He was, however, the officer in charge, and it is clear that the arresting officer was acting under his direction or instruction. This is sufficient. United States v. Bianco, 189 F.2d 716 (3d Cir. 1951); cf., Travis v. United States, 362 F.2d 477 (9th Cir. 1966), cert. denied, 385 U.S. 885, 87 S.Ct. 179, 17 L.Ed.2d 113 (1966); Bynum v. United States, supra.

Following trial, at 3:15 p. m. on June 24, 1965, the jury retired to deliberate. At 12:35 p. m. the following day they reported that they were unable to agree. The District Judge then gave the charge set forth in the margin.² Appellant contends that this was coercive.

378 F.2d 348

The charge is much like that approved in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), and in our judgment was not coercive. Walsh v. United States, 371 F.2d 135 (9th Cir. 1967); Henry v. United States, 361 F.2d 352 (9th Cir. 1966), cert. denied, 386 U.S. 957, 87 S.Ct. 1022, 18 L.Ed.2d 104...