Denson v. United States, No. 602-69.
| Decision Date | 07 May 1970 |
| Docket Number | No. 602-69. |
| Parties | Joe Louis DENSON, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Michael B. Lavinsky, Denver, Colo., for appellant.
James A. Pusateri, Asst. U. S. Atty., Kansas City, Kan. (Robert J. Roth, U. S. Atty., Kansas City, Kan., with him on the brief), for appellee.
Before LEWIS, BREITENSTEIN and SETH, Circuit Judges.
Joe Louis Denson, appellant, was convicted of second degree murder in the United States District Court for the District of Kansas, after a trial by jury.
On February 21, 1969, the appellant, an inmate in the United States Penitentiary at Leavenworth, Kansas, fatally stabbed another inmate, Morris Joseph. The record shows that Morris Joseph was stabbed nine times. Appellant did not deny that he stabbed Morris Joseph, but contended at trial that he was acting in self-defense.
Immediately after the stabbing, appellant was placed in disciplinary segregation. While so confined, appellant began to communicate with other inmates similarly confined. This communication was carried on in violation of prison rules by means of written coded messages which were given to inmate-orderlies who were asked to pass the messages to the various recipients. The inmate-orderlies, instead of delivering the messages as requested, gave them to the penitentiary correctional officers, who photocopied the messages and returned them to the inmate-orderlies with instructions to complete the delivery. There were approximately fifty messages handled in this manner. The photographic copies of these messages were given to the resident FBI agent who forwarded them to the FBI in Washington for decryptment. Three of these messages written by appellant contained self-incriminating statements, and the photographic copies were introduced into evidence by the prosecution together with their decryptments.
Appellant contends that the introduction of these messages into evidence was error. He presents two grounds for this contention: First, he argues that his constitutional rights were violated as a result of the admission of these messages; and secondly, that the admission of the photographic copies violated the best evidence rule.
Appellant argues that the admission of the messages violated his Fifth Amendment privilege against self-incrimination. The cases cited by appellant lend no support to this argument. There was no confession nor admission extracted from appellant through an unlawful interrogation or coercion as there was in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, nor were the admissions extracted from appellant through trick or deceit, as in Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265. Appellant was merely permitted to do that which he set out to do.
Appellant contends also that the messages were secured by the Government by resort to entrapment. The facts of this case, however, fail to disclose any element of the defense of entrapment. As the Supreme Court of the United States pointed out in Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848: "Entrapment occurs only when the criminal conduct was `the product of the creative activity' of law-enforcement officials." There is nothing in the record before us to indicate that the sending of the messages by appellant in contravention of prison regulations was initiated by the Government. The mere fact that the prison authorities permitted the appellant to continue to do that which he was able and willing to do does not constitute entrapment. Wolford v. United States, 401 F.2d 331 (10th Cir.); Garcia v. United States, 373 F.2d 806 (10th Cir.).
Lastly, appellant urges that the messages were obtained through an unlawful search and seizure. The facts of the situation belie this argument. There was no search or seizure. The appellant voluntarily delivered the messages to the inmate-orderlies who voluntarily delivered them to the correctional officers. The record is devoid of any indication that even the inmate-orderlies were forced to deliver...
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