Nelson v. United States

• Decision Date: 02 July 1953
• Docket Number: 11364.,No. 11353-11361,11363,11353-11361
• Citation: 208 F.2d 505,93 US App. DC 14
• Parties: NELSON v. UNITED STATES (two cases). NOWLAND v. UNITED STATES (two cases). LEE v. UNITED STATES. LOWERY v. UNITED STATES. KIRBY v. UNITED STATES. MacWILLIAMS v. UNITED STATES. (two cases). TRENT v. UNITED STATES. BRADY v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

93 US App. DC 14, 208 F.2d 505 (1953)

NELSON v. UNITED STATES (two cases).

NOWLAND v. UNITED STATES (two cases).

LEE v. UNITED STATES.

LOWERY v. UNITED STATES.

KIRBY v. UNITED STATES.

MacWILLIAMS v. UNITED STATES. (two cases).

TRENT v. UNITED STATES.

BRADY v. UNITED STATES.

Nos. 11353-11361, 11363, 11364.

United States Court of Appeals District of Columbia Circuit.

Argued January 6, 1953.

Decided July 2, 1953.

Writ of Certiorari Denied October 12, 1953.

COPYRIGHT MATERIAL OMITTED

David F. Smith, Washington, D. C., with whom T. Edward O'Connell, Washington, D. C., was on the brief, for appellants in Nos. 11353 to 11357 and 11364.

Charles E. Ford and H. Clifford Allder, Washington, D. C., on the brief for appellants in Nos. 11358 and 11359.

Edward Bennett Williams, Washington, D. C., with whom Murdaugh Stuart Madden, Falls Church, Va., on the brief, for appellants in Nos. 11360, 11361 and 11363. Francis P. Noonan, Washington, D. C., entered his appearance for appellant in No. 11363.

William E. Kirk, Jr., Asst. U. S. Atty., at time of argument, Washington, D. C., with whom Charles M. Irelan, U. S. Atty., at time of argument, Washington, D. C., John W. Fihelly, Thomas A. Wadden, and Alfred L. Hantman, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee. Joseph M. Howard, Asst. U. S. Atty., when brief was filed, Washington, D. C., was also on the brief, for appellee. William R. Glendon, Asst. U. S. Atty., at time of argument, Washington, D. C., entered an appearance on behalf of the appellee.

Before EDGERTON, PRETTYMAN and BAZELON, Circuit Judges.

Writ of Certiorari Denied October 12, 1953. See 74 S.Ct. 48.

BAZELON, Circuit Judge.

All the appellants were jointly tried and convicted under District of Columbia lottery laws for conducting a large "numbers" operation controlled by one of them, Charles E. Nelson.¹ Seventy highly incriminating papers belonging to Nelson were admitted in evidence as Government exhibits, over his objection that they were obtained from him in an illegal search and seizure² by the Senate's Special Committee to Investigate Crime in Interstate Commerce.³ At the hearing on Nelson's motion to return these papers and suppress them in evidence, the main thrust of his counsel's argument was that as a matter of law he had not voluntarily surrendered the papers to the Committee.⁴ The trial court, in denying the motion, held on the merits that Nelson "voluntarily turned over" these papers to the Committee. This issue, briefed and argued on Nelson's behalf in this court, is therefore clearly before us for decision.⁵ Since we think Nelson must prevail on this issue, we need not reach consideration of the contention stressed in his motion and supporting affidavit that the Committee illegally turned over his papers to the United States Attorney in the face of a Committee promise to return them to him "at the very earliest date, so as not to inconvenience him any."⁶

If, as his counsel contended, Nelson's action in turning over his papers to the Committee "was not voluntary as a matter of law," the papers were the fruit of an illegal search and seizure and hence inadmissible in evidence.⁷ Criteria for determining this issue were stated by Judge Washington, speaking for this court, in Judd v. United States.⁸ While Judd was under arrest, he was asked whether "`he minded the police going over to his room and taking a look, and he said no. * * * He said he had nothing to conceal or hide out there, and it was perfectly all right for them to go out there.'"⁹ In excluding evidence seized in a search pursuant to such assent, we said:

"Searches and seizures made without a proper warrant are generally to be regarded as unreasonable and violative of the Fourth Amendment. True, the obtaining of the warrant may on occasion be waived by the individual; he may give his consent to the search and seizure. But such a waiver or consent must be proved by clear and positive testimony, and it must be established that there was no duress or coercion, actual or implied. 1 The Government must show a consent that is `unequivocal and specific\' 2, `freely and intelligently given.\' 3 Thus `invitations\' to enter one\'s house, extended to armed officers of the law who demand entrance, are usually to be considered as invitations secured by force. 4 A like view has been taken where an officer displays his badge and declares that he has come to make a search 5, even where the householder replies `All right.\' 6 A finding of consent in such circumstances has been held to be `unfounded in reason\'. 7 Intimidation and duress are almost necessarily implicit in such situations; if the Government alleges their absence, it has the burden of convincing the court that they are in fact absent.

"This burden on the Government is particularly heavy in cases where the individual is under arrest. Nonresistance to the orders or suggestions of the police is not infrequent in such a situation; true consent, free of fear or pressure, is not so readily to be found. 8 In fact, the circumstances of the defendant\'s plight may be such as to make any claim of actual consent `not in accordance with human experience\', and explainable only on the basis of `physical or moral compulsion\'. 9"¹⁰

"1 Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; United States v. Kelih, D.C.S.D.Ill. 1921, 272 F. 484.

"2 Karwicki v. United States, 4 Cir., 55 F.2d 225, 226.

"3 Kovach v. United States, 6 Cir., 53 F.2d 639.

"4 United States v. Marquette, D.C.N.D.Cal.1920, 271 F. 120.

"5 United States v. Slusser, D. C.S.D.Ohio 1921, 270 F. 818.

"6 United States v. Marra, D. C.W.D.N.Y.1930, 40 F.2d 271.

"7 Herter v. United States, 9 Cir., 27 F.2d 521.

"8 United States v. Novero, D.C., 58 F.Supp. 275; United States v. McCunn, D.C.S.D.N.Y.1930, 40 F. 2d 295.

"9 Ray v. United States, 5 Cir., 84 F.2d 654, 656."

It is clear from Judd and the many cases discussed therein that consent, like "The fairness of a trial must be determined by appraisal of the whole rather than by picking and choosing among its component parts."¹¹ Only in that way can we ascertain whether consent is voluntary, i. e., given "freely and intelligently,"¹² without "physical or moral compulsion."¹³ Essential to that appraisal here is an evaluation of the influences at work upon Nelson when he turned over his papers. Those influences sprang from the circumstances of a day-long interrogation of Nelson by the Senate Committee.

Nelson appeared before the Committee under compulsion of a subpoena served upon him the preceding afternoon.¹⁴ He appeared without counsel. Committee spokesmen neither advised him that he might have counsel nor that he had a constitutional right not to incriminate himself.¹⁵ Question after question was directed at his illegal gambling activities in the District of Columbia. His evasive responses were first met by voluble expressions of dissatisfaction. But before the Committee obtained his assent to let it see a personal account book, it had characterized his conduct as "very dark and very suspicious," "very incriminating," and the following had occurred:

"Mr. Rice Committee counsel. Frankly, I think his attitude is contemptuous, Senator, and I think he should be at least instructed that the law is to the effect that if a witness knows the answer to the question he can be cited for contempt or perjury just the same as if he refuses to answer if he knows the answer and says he does not know. Do you understand that?

* * *

"The Chairman. You are the only one that can clear it up, and now is your chance, because the committee is not — this is not going to be laughed off with the committee. We are going to the bottom of it, and we are going to bring it to the authorities, and those who are guilty are going to be prosecuted, and if you are one of them, you are going to be in it.

"Now if you are not one of them, now is the time to make it clear, and so far you have not made it clear.

"We are going to take a recess shortly and I simply suggest that you think over carefully and come back when you resume the stand prepared to tell us the truth. Now is your chance, and it is up to you entirely. Do you understand what I say?

"Mr. Nelson. I get the general drift. You don\'t feel like I am doing what I can.

"The Chairman. No, I do not.

"Mr. Nelson. Believe me, I have never been in this poolroom that he mentions that I can remember.

"The Chairman. I am talking about the whole picture, what we understand is a $6 million operation, from which you have received hundred thousand dollars. Now you are not going to make us believe that you are as ignorant as you appear to be. Now you, therefore, have the chance to come back this afternoon and tell us the truth if you want to, and if you don\'t clear it up, you have nobody to blame but yourself if you are involved in some prosecution later.

"Mr. Nelson. I have told the truth.

"The Chairman. Do you understand what I said?

"Mr. Nelson. I take it —

"The Chairman. Do you understand it?

"Mr. Nelson. Do you want me to come back this evening, is that what you want me to do, and talk further?

"The Chairman. I want you to think it over during the lunch recess, think it over —

"Mr. Nelson. Yes.

"The Chairman. (continuing) — and come back prepared to tell us the truth, which so far you have not done.

"Mr. Nelson. I beg your pardon, sir. I have really tried, and have told you the truth.

"The Chairman. That is my opinion.

"Mr. Nelson. I can understand how you may feel that way.

"The Chairman. And you haven\'t cleared the matter up at all so far. You have the chance.

"Mr. Nelson. What did you want to clear up, sir?

"The Chairman. This whole matter about the different operations which run up to considerable amounts, and from which you have gotten a lot of money, and which you have benefited from, and you cannot make us believe that you don\'t know what kind of business operations they were.

"Mr. Nelson. I have told you everything that I

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