London v. Patterson

• Decision Date: 12 October 1972
• Docket Number: No. 26466.,26466.
• Citation: London v. Patterson, 463 F.2d 95 (9th Cir. 1972)
• Parties: John Allan LONDON, Plaintiff-Appellant, v. L. N. PATTERSON, Superintendent, Deuel Vocational Institution, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

463 F.2d 95 (1972)

John Allan LONDON, Plaintiff-Appellant, v. L. N. PATTERSON, Superintendent, Deuel Vocational Institution, Defendant-Appellee.

No. 26466.

United States Court of Appeals, Ninth Circuit.

July 10, 1972.

Rehearing Denied October 12, 1972.

John Allan London, Mountain View, Cal. (argued), Phil Ginsberg, Seattle, Wash., for plaintiff-appellant.

Louise H. Renne, Deputy Atty. Gen. (argued), John T. Murphy, Deputy Atty. Gen., Evelle J. Younger, Atty. Gen., San Francisco, Cal., for defendant-appellee.

Before KOELSCH, TRASK and GOODWIN, Circuit Judges.

TRASK, Circuit Judge:

This appeal is from the denial of petitioner's request for a writ of habeas corpus, without an evidentiary hearing. The district court had jurisdiction under 28 U.S.C. § 2241, this court's jurisdiction on appeal is pursuant to 28 U.S.C. § 2253, a certificate of probable cause having issued from the district court.

In 1964, petitioner, John London, was financial advisor to Mrs. Muriel T. Geddes. As a result of this relationship, on March 7, 1966, Mrs. Geddes filed suit against London in Superior Court for the State of Washington, alleging that London had obtained $740,000 from her: (1) as a cash loan which had not been repaid; (2) under a scheme to defraud her; or (3) under the guise of performing legal services, which he was not licensed to do. She prayed for a judgment against London for $740,000 plus six percent interest, and taxable costs.

Pursuant to pre-trial discovery procedures, London's deposition was taken on March 24, 1966, during which he testified that he did not have Mrs. Geddes sign various documents, that he did not sign them for her, and that he had given a handwriting exemplar to the police. We do not know the outcome of that action.

On June 15, 1966, London was indicted on two counts of forgery, Cal.Penal Code § 470, and one count of grand theft, Cal.Penal Code § 484, arising out of a transaction which was at least part of the subject matter of Mrs. Geddes' civil suit against him. On London's advice, Mrs. Geddes had invested in Holiday Lodge, Reno, Nevada. The lodge got into serious financial difficulty, and in order to "save" Mrs. Geddes' investment, London arranged a $50,000 loan from Concord National Bank to Metro-Urban Corporation to be guaranteed by Mrs. Geddes' $50,000 note, which London was accused of forging.

London's first trial on the criminal charges ended in October 1966, with a hung jury. A second trial was held in December 1966. At this trial, the prosecution read to the jury portions of the deposition London had given in the civil action brought by Mrs. Geddes. No objection was made to the use of the deposition as evidence.

Petitioner was convicted on May 8, 1967, the proceedings having been suspended under Cal.Penal Code § 1203.03 to place petitioner in a diagnostic facility for observation. He was sentenced to state prison for the term prescribed by law, and is currently on probation.

London's conviction was affirmed on September 27, 1968, by the Court of Appeal, First Appellate District, where he contended only that the instructions given at the trial were erroneous. He filed a petition for hearing with the California Supreme Court on the same ground, which was denied on November 20, 1968. On November 29, 1968, petitioner filed a petition for writ of habeas corpus with the California Supreme Court raising for the first time the issue presented in his federal habeas petition; it was denied.

On March 6, 1969, petitioner filed his request for a writ of habeas corpus in federal district court. London contends that he was denied due process because the prosecution, during its case in chief, read to the jury portions of the deposition petitioner had made in the civil action brought by Mrs. Geddes. At the time of the deposition, petitioner asserts, he was aware of no criminal action pending against him nor of the possibility of any such action.

The first issue brought to this court by petitioner is whether the statements he made during his deposition in the civil action could be admitted in the later criminal trial, where he did not take the stand, without violating his Fifth Amendment privilege against self-incrimination.

Some prior statements of a criminal defendant may be used even though he does not take the stand in his own behalf. His confessions, when shown to have been voluntarily made, are admissible against him even though he does not become a witness, and this does not violate his Fifth Amendment rights. Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); United States v. Hughes, 411 F.2d 461, 466 (2nd Cir.), cert. denied, 396 U.S. 867, 90 S.Ct. 145, 24 L.Ed.2d 120 (1969). Likewise, former testimony, voluntarily given in a criminal trial, may be introduced in a later trial upon remand. Edmonds v. United States, 106 U.S.App.D.C. 373, 273 F.2d 108 (1959), cert. denied, 362 U.S. 977, 80 S.Ct. 1062, 4 L.Ed.2d 1012 (1960).

Appellant readily distinguishes these two situations, because in each the defendant is fully aware of the criminal prosecution imminently probable or in progress when he speaks. It is therefore "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Appellant places great emphasis upon the argument that at the time his deposition was taken in the civil case, there was "no reason whatever to apprehend any possibility of incrimination." Therefore, appellant continues, his innocent answering of questions could not have amounted to waiver.

Paragraph II of the complaint in the civil action provided in pertinent part that:

"Defendant husband London obtained from plaintiff Geddes various sums from time to time totaling $740,000. The funds . . . were obtained from plaintiff under a scheme to cheat, defraud and unlawfully deprive plaintiff of her said funds, or were obtained from her in the guise of performing legal services for her and giving her legal advice, all at a time when defendant husband was not licensed to practice law. . . ."

Under such allegations, assuming the usual state criminal code, London could well have anticipated a possible criminal charge of obtaining money under false pretenses, larceny, criminal fraud or extortion. He was represented by counsel at the deposition where this questioning took place, and appropriate objection could have been made. One being sued civilly for $740,000 upon charges of such a nature, and having retained counsel, could not have been blithely innocent of possible criminal involvement. We cannot view as clearly erroneous ...