Haines v. United States, 12447.

• Decision Date: 06 June 1951
• Docket Number: No. 12447.,12447.
• Citation: 188 F.2d 546
• Parties: HAINES v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

188 F.2d 546 (1951)

HAINES v. UNITED STATES.

No. 12447.

United States Court of Appeals Ninth Circuit.

April 17, 1951.

Rehearing Denied June 6, 1951.

Morris Lavine, Los Angeles, Cal., for appellant.

Ernest A. Tolin, U. S. Atty., Norman W. Neukom and Jack E. Hildreth, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before STEPHENS, BONE and ORR, Circuit Judges.

BONE, Circuit Judge.

Appellant was convicted on a counterfeiting charge laid under Sec. 471 of Title 18 U.S.C.A. He had previously entered a plea of guilty to this charge which plea was later set aside on his motion, a plea of not guilty ordered entered for him and the case set for trial. At a subsequent trial before the court, without a jury, appellant was found guilty and from the judgment of conviction this appeal was prosecuted.

Specification of Errors

Appellant demands reversal of his conviction on the basis of three errors committed in the trial. The alleged errors are:

I

The evidence was insufficient to support the verdicts. The verdicts were contrary to the law and the evidence.

II

The court erred in receiving the alleged confessions in evidence both from the defendant (Government's Exhibit 15) and orally to the Deputy United States Attorney, Ray H. Kinnison prior to the arraignment of the defendant and prior to the time he was represented by any counsel or friend and after he had been questioned at length by Secret Service agents.

III

The trial court erred in not granting a motion for a new trial to set aside the verdict which he had rendered without an intelligent or understanding waiver of trial by jury by the defendant.

The Jury Waiver

A formal record entered at trial time on September 7, 1949 shows the appearance of appellant and his counsel in open court and in part recites that "the defendant being desirous of having the case tried before the court without a jury, now requests of the court that the case be so tried and hereby consents that the Court shall sit without a jury and hear and determine the charges against the defendant without a jury." This statement in a record styled "Waiver of Jury" was signed by appellant in open court. To the foregoing statement was appended a statement signed by his counsel in which she sets forth that she had advised appellant fully as to his rights and this statement carried counsel's assurance to the court that appellant's request for a trial without a jury "is understandingly made." The United States Attorney entered his consent in writing to appellant's request for trial before the court without a jury. After these formalities were noted of record the court indicated his approval of the waiver by his signature.

Appellant here contends that the trial judge approved his formal jury waiver without questioning defendant, or reaching any determination as to the facts set out in the printed (waiver) form filed with the court. This issue was presented for the first time when appellant appeared for sentence, at which time, among other matters, mitigation of sentence or probation was urged by his counsel for the reason that certain claimed extenuating circumstances (including an absence of "criminal tendencies") justified leniency. Upon this occasion the court referred to certain critical statements made by appellant regarding his jury waiver which appeared in the probation report and requested a "clarification" of these statements. The court stated that nobody had urged appellant to waive a jury; that the idea of waiver did not originate with the United States Attorney¹ or with the court, and the court's approval came only after appellant had signed the waiver in open court and only after it had been approved by counsel on both sides. Appellant was thereupon directed to indicate to the court the nature of the "confusion" which he claimed existed in his mind as to the voluntary character of his waiver, and the court announced that if appellant did not know what he was doing it would refuse to impose a sentence.

Trial counsel for appellant was then called and interrogated by the court and the substance of her statement to the court was that a week before the trial she had conferred with appellant regarding the desirability of having a jury and her advice was to waive a jury because of the facts he had given her and because she was satisfied that the judge would be fair and just. Two days before the trial, and again one day before the trial, the matter of a jury waiver was again presented to appellant by his counsel and appellant then advised counsel that he would leave the matter to her discretion and that her determination "was all right with him." His counsel again discussed the waiver matter with appellant on the morning the case was called for trial as a result of which the waiver was presented and signed in open court. Counsel also stated to the court that it was her opinion that she advised government counsel that a waiver would be filed.

When interrogated by the judge appellant stated that he "could not remember" the conversation with his counsel regarding a waiver — that he thought it was "an order to go ahead with the case." After this colloquy the trial judge stated that having witnessed all that went on in the court room at the time the waiver was signed he would not believe appellant's "explanation." From an inspection of the record we feel that the judge was fully justified in this conclusion.

To attach convincing weight to appellant's story would also impeach without just cause the intelligence and integrity of his counsel. She had given her personal assurance to the court that plaintiff's request for a non-jury trial was free and voluntary and made after he fully understood its meaning. Aside from this assurance, if the story of appellant is viewed in the most tolerant spirit and favorable light, it fails to carry the conviction of truth. Obviously it was rejected for this reason. We find no sound reason for condemning the action of the judge as an abuse of discretion in passing on such an issue. We cannot agree with (different) counsel appearing on this appeal who urges that the record reveals that appellant was ignorant of the significance of the waiver he signed. We are persuaded that the record fully refutes such a conclusion. The "ignorance" offered as an explanation probably appealed to the judge as being nothing but an afterthought — a conclusion we think is fully justified.

The Evidence Does Not Support the Verdict

This issue is presented in the following claims:

1. The case was based primarily, if not entirely, on the testimony of one White, an alleged principal, who passed the counterfeit money and who tried to place the responsibility upon appellant.

2. Conversations of White in evidence showed White's extreme knowledge of how to make counterfeit bills. White's testimony shows the "lack of substantiality" required to convict in a federal court.

3. Federal courts have frowned upon a conviction where (as here) the principal offender (White) simply blames his aider and abettor.

4. Appellant recognizes the rule that the testimony of an accomplice in a federal court, if believed, is sufficient to sustain a conviction.

In substance and effect the foregoing claims are merely a demand that we weigh the evidence to determine whether the trial judge was justified (upon a consideration of all of the relevant, competent and credible evidence) in concluding that it was substantial and established the guilt of appellant beyond a reasonable doubt. He thought that the evidence was sufficient and so do we, and on such a fact issue his judgment must control. Furthermore, the reference to the weight a court must give the testimony of an accomplice requires no comment — the trial judge was quite well aware of the nature of such testimony and no showing of actual legal prejudices because of it, is made. Here the court indicated that it thought that White's testimony was not only credible but was also corroborated by facts in this case. This specification of error is without merit.

The Confessions

Appellant's major contention on this appeal is that he was wrongly convicted because two confessions were received in evidence (without objection) which should have been rejected by the court. In summary his argument is:

1. The oral confession made to Kinnison, a United States attorney, and the oral and written confession made to Eliason, a Secret Service officer, were made and/or received prior to his arraignment before a magistrate.

2. None of his "rights" were sought to be protected prior to the taking of these confessions.

3. When the written statement was admitted in evidence the trial judge "took no precautions" to determine whether the statement was "free and voluntarily secured" as required by the Fifth Amendment.

4. Eliason "posed as a friend" of appellant after making the arrest on March 3, 1949 and (thus) secured the written confession.

Because the circumstances attending the apprehension of appellant and the sequence of events leading up to and including the making of the confessions constitute the factual basis of the foregoing contention we summarize the pertinent facts relating thereto as they clearly appear in the record.

Appellant was arrested by Secret Service Agent Carl Eliason between 9 and 10 A.M. on March 3, 1949 at which time he knew that Eliason was acting in an official capacity. Eliason promptly admonished him that he had the right to remain silent but if he made a statement it could be used against him. He was immediately taken to the office of the Secret Service in the Federal Building in Los Angeles and upon arrival there was questioned by Eliason. Polenz and Wasson, two officers in the same service were present during part of this inquiry. Appellant thereupon made a statement to Eliason in which he described his participation in counterfeiting activities with one White. In summary his oral statement to Eliason was as follows:

Through an...