Mullican v. United States, No. 16582.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: CAMERON, JONES and WISDOM, Circuit
• Citation: 252 F.2d 398
• Parties: Lloyd MULLICAN and Kenneth Eugene Shores, Appellants, v. UNITED STATES of America, Appellee.
• Decision Date: 26 February 1958
• Docket Number: No. 16582.

252 F.2d 398 (1958)

Lloyd MULLICAN and Kenneth Eugene Shores, Appellants,
v.
UNITED STATES of America, Appellee.

No. 16582.

United States Court of Appeals Fifth Circuit.

February 26, 1958.

252 F.2d 399

George F. Edwardes, Texarkana, Ark., for appellants.

William M. Steger, U. S. Atty., Harlon E. Martin, Asst. U. S. Atty., Tyler, Tex., for appellee.

Before CAMERON, JONES and WISDOM, Circuit Judges.

JONES, Circuit Judge.

The appellants, Lloyd Mullican and Kenneth Eugene Shores, were charged by separate indictments under the Federal Escape Act, 18 U.S.C.A. § 751, with unlawfully escaping, on or about June 18, 1956, "from confinement in the Federal Correctional Institution, Texarkana, Texas, in which said institution" they were "then and there confined by direction of the Attorney General, said confinement being by virtue of a conviction of an offense against the laws of the United States." After their unannounced departure from the institution

252 F.2d 400

they were apprehended and placed in punitive segregation, a phrase which for our purposes here may be translated as meaning solitary confinement. While so held, Shores made a confession to an F.B.I. agent. Mullican and Shores were separately indicted and entered pleas of not guilty. The cases were consolidated for trial. Verdicts of guilty were returned and sentences were imposed. A number of contentions are urged in support of the claim that the convictions were erroneous

The use of the confession is challenged on the ground that Shores was not promptly taken before a Commissioner for a preliminary hearing pursuant to Rule 5(a), Fed.Rules Crim.Proc. 18 U.S.C.A., and because of this the defendant Shores was deprived of his right to be informed as to the nature of the offense, as to his right of counsel, and as to his right to refrain from self-incrimination. The so-called McNabb doctrine is invoked in support of this contention. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. The McNabb rule is that "A confession is inadmissible if made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the `confession is the result of torture, physical or psychological * * *.'" Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 172, 93 L.Ed. 100. See Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. The Supreme Court has refused "to extend the McNabb fixed rule of exclusion to statements to police or wardens, concerning other crimes while prisoners are legally in detention on criminal charges". United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 102, 96 L.Ed. 48. Since Shores and Mullican were lawfully detained they were subject to proper questioning without being taken before a Commissioner. The confession of Shores was properly admitted.

The appellants would have us say that because they were given punitive segregation any other punishment would amount to double jeopardy. We are in agreement with the view of the Fourth Circuit which was thus expressed:

"Criminal prosecution for the crime of escape is not prohibited under the double jeopardy clause of the fifth amendment because a convict guilty thereof has upon his recapture been subjected to discipline by the prison authorities for the violation of prison discipline involved". Patterson v. United States, 4 Cir., 1950, 183 F.2d 327, 328, certiorari denied 340 U.S. 893, 71 S.Ct. 200, 95 L.Ed. 647.

There was no double jeopardy.

The appellants contend that the appointment of counsel was so long delayed as to amount to a denial of their substantial rights. The record does not show when counsel was assigned. If any additional time for preparation for trial was needed the record does not indicate it. Although Shores did not have counsel at the time of his confession, he was advised of his right to counsel. We see no merit in the contention and if there were it was not presented to the trial court nor preserved for review.

The appellants objected to the introduction at the trial of Government exhibits 2, 3 and 4, and urge that the admission of these documents was error requiring reversal. Government Exhibit 1 is a copy of the judgment and sentence of the District Court for the Northern District of Alabama by which Shores was sentenced for interstate transportation of a stolen automobile, to three years imprisonment on April 20, 1953. Endorsed on the judgment is the marshal's return showing the delivery of Shores to the U. S. Penitentiary at Atlanta, Georgia. The copy is authenticated by the certificate of the clerk of the court. No objection was made to this document. Government Exhibit 2 is a photostatic copy of the record of the judgment and sentence of the District Court for the Southern District of Texas showing that Mullican was sentenced to two years imprisonment on March 10, 1954. Included as a part of Government Exhibit 2 is a copy of the return of the marshal showing the

252 F.2d 401

delivery of Mullican pursuant to the sentence to the Federal Reformatory at El Reno, Oklahoma, on March 19, 1954. Both of these documents are authenticated by the certificate of the clerk of the court with the seal of the court affixed. The copy of a record is no less a copy, and a copy of an instrument is not any less a copy, because reproduced by photographic process

The Federal statute says:

"(a) Books or records of account or minutes of proceedings of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence as a memorandum of which the same were made or kept.

"(b) Properly authenticated copies or transcripts of any books, records, papers or documents of any department or agency of the United States shall be admitted in evidence equally with the originals thereof." 28 U.S.C.A. § 1733.

The Federal Rules provide:

"An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has the custody. If the office in which the record is kept is within the United States or within a territory or insular possession subject to the dominion of the United States, the certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office." Rule 44, Fed.Rules Civ.Proc. 28 U.S.C.A.

The rule quoted is applicable to criminal as well as to civil actions. Rule 27, Fed. Rules Crim.Proc. 18 U.S.C.A. The documents comprising Government Exhibit...