Krull v. United States

• Decision Date: 25 March 1957
• Docket Number: No. 15997.,15997.
• Parties: George KRULL and Michael Krull, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

240 F.2d 122 (1957)

George KRULL and Michael Krull, Appellants, v. UNITED STATES of America, Appellee.

No. 15997.

United States Court of Appeals Fifth Circuit.

January 4, 1957.

Writ of Certiorari Denied March 25, 1957.

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Clinton J. Morgan, Oscar M. Smith, James S. Kilpatrick, Rome, Ga., for appellants.

J. Robert Sparks, Asst. U. S. Atty., Atlanta, Ga., James W. Dorsey, U. S. Atty., Atlanta, Ga., for appellee.

Before TUTTLE, CAMERON and JONES, Circuit Judges.

Writ of Certiorari Denied March 25, 1957. See 77 S.Ct. 674.

JONES, Circuit Judge.

The appellants, George Krull and Michael Krull, were charged in a single indictment with these offenses:

(a) By Count 1, both defendants were charged with the kidnapping and transportation from Tennessee into Georgia of the female victim, named in the indictment, in violation of 18 U.S. C.A. § 1201;

(b) By Count 2, Michael Krull was charged with committing rape upon, and George Krull was charged with aiding and abetting Michael in raping of the named victim in the Chickamauga and Chattanooga National Military Park, alleged to be under the exclusive jurisdiction of the United States, in violation of 18 U.S.C.A. § 2031;

(c) By Count 3, George Krull was charged with committing rape, and Michael Krull was charged with aiding and abetting George in the rape of the same victim in the Chickamauga and Chattanooga National Military Park, alleged to be under the exclusive jurisdiction of the United States, in violation of 18 U.S.C.A. § 2031; and

(d) By Count 5, the defendants were jointly charged with the interstate transportation of a stolen automobile in violation of the Dyer Act, 18 U.S.C.A. § 2312.

The appellants were found guilty of the offenses of which they were accused by the indictment. For the conviction under Count 1 of the indictment they were sentenced to life imprisonment; for the conviction of the charge of Count 2 they were sentenced to death; the same penalty was imposed upon the conviction of the Count 3 charges; and for the conviction under Count 5, each defendant was sentenced to five years imprisonment. Counsel for the appellants, ably representing them by court appointment in a cause distasteful in many of its sordid aspects, have appealed from the convictions and sentences. We shall make no more references to the revolting evidentiary details disclosed by the record than is required properly to dispose of the questions which we are called upon to decide.

Counsel for Michael Krull who represented him at his trial and on this appeal were appointed on September 12, 1955. They conferred with him while he was confined in a prison known as the Fulton Tower. Thereafter Michael Krull was removed to the Federal Penitentiary at Atlanta for the assigned reason of an attempted escape. Of this removal the counsel for Michael were told by the United States Attorney who advised that counsel could see their client at the penitentiary and if anything was not satisfactory in regard to interviewing their client to let him, the United States Attorney, know. The case was set for trial and the trial commenced on Monday, January 30, 1956. Five days before this date, on Wednesday, January 25, 1956, counsel for Michael went to the penitentiary for an interview with him. He was brought to them in a room about twelve feet wide and twenty feet long. The appellant, Michael Krull, and his counsel conferred at a table at one end of the room while at the other end of the room, seated at a table and facing them, was a Federal Correctional Officer. Counsel asked the officer to leave and he replied that his orders required him to stay. Counsel talked in a low tone to Michael for forty-five minutes to an hour. They asked their client all of the questions they would have asked if the officer had not been in the room. They stated that they believed the officer could have overheard them. No report of the interview or anything there said was made to the United States Attorney or to any of his assistants. Counsel for Michael made no request of the warden or other supervisory official at the penitentiary for a private conference with their client; they made no complaint to the United States Attorney who had requested that he be told if anything was not satisfactory with respect to interviewing their client. At the trial one of counsel for Michael said that he felt the matter was not in the purview of the United States Attorney. Counsel made no application to the Court or to the Judge for an order providing for a private interview. Counsel stated that he thought he "had gone as far as the law required him to go". When the case was called for trial, counsel for Michael moved on his behalf for a continuance, asserting that the presence of the officer in the room and the refusal of the officer to leave when so requested denied or deprived Michael Krull of the right to counsel guaranteed to him by the Sixth Amendment to the Constitution of the United States. The motion was denied and the ruling is assigned as error.

The right which the appellant, Michael Krull, seeks to invoke is one of those which are guaranteed by the Bill of Rights. "In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defense". U.S.Const. Amend. VI. The aid of counsel in consultation, investigation and preparation for trial in a criminal case is as necessary as the presence and participation of counsel at the trial itself. Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; House v. Mayo, 324 U.S. 42, 65 S.Ct. 617, 89 L.Ed. 739; Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 166, 90 L. Ed. 61; United States v. Venuto, 3 Cir., 1950, 182 F.2d 519; Thomas v. District of Columbia, 1937, 67 U.S.App.D.C. 179, 90 F.2d 424; Shapiro v. United States, 1947, 69 F.Supp. 205, 107 Ct.Cl. 650; McDonald v. Hudspeth, D.C.Kan., 41 F. Supp. 182.

The prosecution is not entitled to have a representative present at a conference between an accused and his counsel to overhear their conversation. Coplon v. United States, 1951, 89 U.S.App. D.C. 103, 191 F.2d 749, certiorari denied 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690; Caldwell v. United States, D.C.Cir., 1953, 205 F.2d 879; United States ex rel. Cooper v. Denno, 2 Cir., 1955, 221 F.2d 626, certiorari denied 349 U.S. 968, 75 S.Ct. 906, 99 L.Ed. 1289; United States v. Lebron, 2 Cir., 1955, 222 F.2d 531, certiorari denied 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774.

The right of an accused to consult his attorney in private is not one without some limitations. It was held by this Court, in a case where an accused had been denied the right to confer with his counsel during the evening of the first day of the trial, that:

"No showing is made that appellant was not permitted to consult with his counsel sufficiently to prepare his defense, and reasonable restrictions may be imposed as to the time and place of consultation between an accused and his attorney without infringing constitutional rights." Altmayer v. Sanford, 5 Cir., 1945, 148 F.2d 161, 162.

It is here shown by the statement of counsel for Michael Krull that he was asked all of the questions which would have been asked of him had there been no one in the room with them. Whatever the officer may have overheard, if anything, was not communicated to the Government prosecutors. It did not appear that the defense of the accused was in any way hampered or prejudiced. The need for conferring in a low voice may have been an inconvenience but it did not infringe any constitutional right.

The interview between Michael Krull and his counsel was on a Wednesday, with four intervening days before the date of the trial on the following Monday. Had privacy been sought by a request to the prison warden, or had the United States Attorney been asked to have arrangements made for a conference with the guard absent, or had an application been made to the trial court, it may be assumed that facilities for a conference would have been provided without anyone present but the accused and his counsel. Counsel for the defendant, Michael Krull, stated to the court that "I thought that since the warden had notified me that I would be able to see him, and believing at that time that it was a constitutional right of my defendant to be counseled with in private, I thought that I had gone as far as the law required me to go." This statement was made in response to a reminder by the United States Attorney of his statement to counsel for Michael Krull that if anything about interviewing the accused at the penitentiary was not satisfactory to let him (the United States Attorney) know. Thus it appears that the hope of preserving a point for appeal was more important to defense counsel than a private interview with his client. Ample opportunity existed for asking for a private consultation. The request should have been made if a private interview was believed to be necessary or desirable. There was no error in refusing to grant a continuance or to grant a new trial on the ground that Michael Krull had been denied the effective right of counsel.

Counts 2 and 3 stated that the offenses there charged were committed in Chickamauga and Chattanooga National Park, a place under the exclusive jurisdiction of the United States. The statute, 18 U.S.C.A. § 2031, makes rape a crime under Federal law when committed "within the special maritime and territorial jurisdiction of the United States". It became necessary, therefore, not only to prove that the offenses charged by these two counts were committed, but also to establish the situs where committed and show that such situs was within the jurisdiction of the United States. Much of the time consumed by the Government in making out its case was spent in the presenting of testimony and documentary evidence offered for the purpose of showing that the United States had jurisdiction over the park,...