McHenry v. United States, 7037

Decision Date12 October 1962
Docket NumberNo. 7037,7038.,7037
Citation308 F.2d 700
PartiesEdward McHENRY and Carl McHenry, Appellants, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Gordon Hoxsie, Salt Lake City, Utah, for appellants.

Gerald R. Miller, Asst. U. S. Atty. (William T. Thurman, U. S. Atty., was with him on the brief), for appellee.

Before PICKETT, HILL and SETH, Circuit Judges.

HILL, Circuit Judge.

The defendants, Carl and Edward McHenry, were tried, convicted and sentenced on two counts of an information. Count I charged them with the offense of bank robbery in violation of 18 U.S.C. §§ 2113(a) and 2113(d), and Count II with conspiracy to commit bank robbery in violation of 18 U.S.C. § 371. Both defendants appeal, urging that the trial court erred in refusing to suppress their oral admissions and written confessions of guilt to the crimes charged in the information and that the sentences imposed by the court are unlawful.

The record discloses that at approximately 3:05 p. m. on January 8, 1962, the Highland Drive Branch of the Valley State Bank in Salt Lake City, Utah, was robbed by a masked bandit armed with a gun and a total of $13,869.31 was taken from the bank. On January 10, 1962, the defendants were interviewed by agents of the Federal Bureau of Investigation in connection with such robbery. This interview commenced at the offices of the state parole board in Salt Lake City as defendants, who were on parole from the state penitentiary for armed robbery, were making their regular report to the board. Both voluntarily went to the F.B.I. offices where the interview was continued without either of the defendants making any admissions concerning the robbery. They were not taken into custody at that time. They were interviewed again by F.B.I. agents in the evening and early part of the night on January 12, 1962, and again made no admissions or confessions with regard to the robbery in question. Later on that same night and after the money taken in the bank robbery had been recovered, the defendants were placed under arrest by the F.B.I. agents and incarcerated in the Salt Lake County Jail. The following morning they were taken before the United States Commissioner and were fully advised of their rights in compliance with Rule 5 of the Federal Rules of Criminal Procedure, 18 U.S.C. They informed the Commissioner they would employ their own attorney and the matter was then continued as to the question of whether the defendants wanted a preliminary hearing until such time as they had employed and consulted with their attorney.

In the afternoon of January 13, the defendants were interviewed by officers from the Salt Lake County Sheriff's office relative to some unsolved local or state offenses in which they were suspects and at that time defendants made oral confessions of their guilt to the bank robbery here in question. Subsequently on the same day and according to the testimony of the F.B.I. agents, at the request of the defendants, they were interviewed again by agents of the F.B.I., at which time they orally admitted their participation in the crimes charged in the information and made the written confessions sought to be suppressed. It should be noted here that at the beginning of each of the interviews, the defendants were fully advised of their constitutional rights and that they could terminate such interview at any time they so desired.

On January 15, 1962, the defendants appeared before the United States Commissioner and waived preliminary hearing. Neither of them had employed counsel and they advised the Commissioner that they did not want counsel appointed for them. On February 2, they appeared in District Court, an attorney was appointed to represent Edward and, upon his motion, Edward's case was sent back to the Commissioner for preliminary hearing. Carl again waived a preliminary hearing. The preliminary hearing for Edward was held and probable cause being found, he was held to answer on the charges in District Court.

On February 21, 1962, both defendants again appeared in District Court and waived indictment in writing and consented to prosecution by information. Edward entered a plea of not guilty to both Counts of the information. Carl pleaded not guilty to Count I and guilty to Count II. At this time, the attorney previously appointed to represent Edward was also appointed to represent Carl. Thereafter, and on February 26, Carl was allowed to change his plea of guilty on Count II to not guilty and his case was sent back to the Commissioner for a preliminary hearing. Probable cause was found upon such hearing and Carl was held to answer on the charges in District Court.

Prior to the trial, the defendants moved to suppress the oral admissions and written confessions made by them on January 13 to the sheriff's officers and to the F.B.I. agents upon the grounds that such admissions and confessions were not voluntarily given but rather were obtained by the officers by threats and promises. A hearing on this motion was held before the district judge prior to trial and was denied. The case proceeded to trial, the admissions and confessions were admitted into evidence over defendants' objections and both defendants were convicted by a jury on both Counts of the information. Each defendant was sentenced to serve the maximum term of 25 years imprisonment on Count I and 5 years imprisonment on Count II, the sentences to run concurrently.

It is first claimed that the defendants were induced and coerced into making such admissions and confessions by means of the following asserted threats: to "lock up" or put Carl's girl friend, Phyllis Carlson, in jail; to embarrass and prosecute the defendants' parents; to revoke their paroles; to commit physical violence to Carl during the course of one of the interviews; and a threat that the officers had the goods on the defendants and they had better confess; and the following asserted promises: not to prosecute them for the state or local offenses; to write a good report to the Judge; and to lessen their jail time.

An involuntary confession or one obtained by means of threats and promises which subject the mind of the accused to the torture of fear or flattery of hope is inadmissible in a criminal trial. United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48; Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090; Martin v. United States, 4 Cir., 166 F.2d 76; Stickney v. Ellis, 5 Cir., 286 F.2d 755. By the same token, an admission or confession made by the accused in a criminal case if freely and voluntarily given without inducements or coercion, is admissible in evidence and this is true even though it is made after arrest or while the accused is in lawful custody. United States v. Carignan, supra; United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140; Fowler v. United States, 10 Cir., 239 F.2d 93; Ruhl v. United States, 10 Cir., 148 F.2d 173; Jones v....

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    ...United States v. Lustig, 163 F.2d 85, 88-89 (C.A.2d Cir.), cert. denied, 332 U.S. 775, 68 S.Ct. 88, 92 L.Ed. 360; McHenry v. United States, 308 F.2d 700 (C.A.10th Cir.); Andrews v. United States, 309 F.2d 127 (C.A.5th Cir.), cert. denied, 372 U.S. 946, 83 S.Ct. 939, 9 L.Ed.2d 970; Leonard v......
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    ...and advice with respect to the assistance of counsel. When the issue is raised in an admissibility hearing, i. e. see McHenry v. United States, 10 Cir., 308 F.2d 700, it is for the court to objectively determine whether in the circumstances of the case the words used were sufficient to conv......
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    ...and advice with respect to the assistance of counsel. When the issue is raised in an admissibility hearing, i.e. see McHenry v. United States, 10 Cir., 308 F.2d 700, it is for the court to objectively determine whether in the circumstances of the case the words used were sufficient to conve......
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