Peek v. United States

• Decision Date: 26 September 1963
• Docket Number: No. 17973.,17973.
• Citation: 321 F.2d 934
• Parties: Harold L. PEEK, Jr., and Susanna E. Peek, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

321 F.2d 934 (1963)

Harold L. PEEK, Jr., and Susanna E. Peek, Appellants, v. UNITED STATES of America, Appellee.

No. 17973.

United States Court of Appeals Ninth Circuit.

August 14, 1963.

Rehearing Denied September 26, 1963.

Jack E. Tanner and Donald H. McGavick, Tacoma, Wash., for appellant Susanna E. Peek.

George E. Shibley, Long Beach, Cal., for appellant Harold L. Peek.

Brockman Adams, U. S. Atty., and John S. Obenour, Asst. U. S. Atty., Tacoma, Wash., for appellee.

Before BARNES, HAMLIN and BROWNING, Circuit Judges.

Rehearing Denied for Harold Peek, Jr., September 26, 1963.

BARNES, Circuit Judge.

Appellant Harold L. Peek, Jr. (hereinafter referred to as Peek) was tried and convicted by a jury in the United States District Court for the Western District of Washington under Counts I, II and III of a five count indictment¹ charging in part: In Count I, robbery of United States funds in violation of 18 U.S.C. § 2112; and, in Counts II and III, assault with a dangerous weapon, and wounding in the commission of a robbery of money of the United States, in violation of 18 U.S.C. § 2114.²

Appellant Susanna E. Peek (wife of Peek and hereinafter referred to as Susanna Peek) was tried and convicted in Count V of the same indictment charging her with receiving, concealing and converting stolen money of the United States in violation of 18 U.S.C. § 641.³

This court has jurisdiction on appeal under the provisions of 28 U.S.C. § 1291.

I — JURISDICTION

Peek argues⁴ that the district court was without jurisdiction to try him upon the charges made against him, which we must first consider. Peek contends that Congress vested primary or "preferential" jurisdiction of the offenses charged in military tribunals, and that, unless it is made to appear on the record that the military authorities have waived jurisdiction, the civil court has no power to hear the case.

Since the offenses alleged in Counts I through IV of the indictment against Peek were committed on a military reservation, involved only military personnel, and were violations of the Uniform Code of Military Justice,⁵ a military tribunal would have jurisdiction. However, United States money was involved, and as indicated in Title 18 of the United States Code, these crimes were also offenses against the United States.⁶ The district courts have "original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States." 18 U.S.C. § 3231.

To resolve the question of jurisdiction in the instant case, this court need not determine whether a military tribunal has either exclusive, primary or "preferential" or concurrent jurisdiction.

Article 14(a) of the Uniform Code of Military Justice (10 U.S.C. § 814) states:

"(a) Under such regulations as the Secretary concerned may prescribe, a member of the armed forces accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial."

Basically, Peek contends that a requisite of the "delivery" mentioned in § 814 (a) is that the record shows that the military authorities have waived jurisdiction. Reference is made to Ex Parte King, E.D.Ky.1917, 246 F. 868, in which the court was called upon to interpret certain articles of war. King, a private, was indicted for killing a civil policeman; at the time of the killing, the United States was at war with Germany. The court concluded that Article of War 92 (which provided that any person subject to military law who committed murder or rape would suffer death or life imprisonment as a court-martial should direct) would not apply to murder committed in the United States in time of peace, conferred prior, if not exclusive jurisdiction on military authorities. And, the court held that King should be delivered from civil custody back to the military authorities because there was no showing that the military personnel who delivered King to civil custody had authority to waive the prior jurisdiction of the military authorities; and, in the absence of this, the prior jurisdiction had to be recognized. The statute in Ex Parte King expressly conferred primary jurisdiction in the military in time of war but only as to certain named offenses. It is not analogous to Article 14(a).

Article 14(a) does not establish, or even indicate, a hierarchy of jurisdiction as between civil and military authorities. It merely provides, that, upon request, a member of the armed forces who is accused of an offense against civil authority may be delivered to the civil authority for trial. If the civil authority had jurisdiction and the member of the armed forces was delivered to that authority, jurisdiction in the civil authority is established.

In the instant case, both of these requisites have been met.

II — THE PRODUCTS OF AN ALLEGED ILLEGAL SEARCH AND SEIZURE

Peek and his wife next urge that the district court was in error in allowing F.B.I. Agent Elgin Olrogg to testify as to conversations had with Susanna Peek during an illegal search and seizure on January 14, 1961, and as to conversation subsequently had with her concerning information that was obtained as a result of an illegal search and seizure as to Susanna Peek (Valid as to Peek) made on January 14, 1961.

Appellants refer to the following portions of the record:

Olrogg testified that prior to January 14, 1961, Peek had executed a written consent to search his residence; and, that while he was in the Peek home on January 14, 1961, Susanna Peek said that in November and December of 1960 her husband brought home approximately $110 each month which he said he won gambling at Fort Lewis, the military reservation on which the robbery took place. At this point, appellants' counsel objected, moved to strike all of Olrogg's testimony, and asked to be heard; the court then excused the jury. (R. 625-30.) The court, in the absence of the jury, asked counsel to research the question of whether or not the consent of the husband to the search of the domicile of a married couple is sufficient to constitute consent by the wife, where the wife is codefendant and is charged with offenses connected with material discovered in the premises. (R. 635.) And, when the jury returned, the court advised them to disregard the testimony of Olrogg, and ordered it stricken. (R. 640.)

Later in the trial, before Olrogg was to testify again, and while the jury was absent, government counsel indicated that he proposed to question Olrogg about a second consent to search executed by Peek, and a search thereunder on January 17, 1961. Counsel for appellants indicated that he would again raise the objection that was made as to the testimony relating to the January 14, 1961, search. To counsel for appellants, the court said:

"My feeling about it at the present time is this, that inasmuch as there is no specific and direct evidence of consent by Mrs. Peek to the entry of the home, although there is strong inference of consent and approval, still there is no direct expression of it, and also there might possibly be some question about it due to the principles applicable to a woman acting as result of actions or instructions, or the like, from her husband.

"In these circumstances, I am constrained to sustain the objection to whatever search may have been made on that day January 14, 1961. Statements made, and the like, I think are admissible. I do not agree with your view of that, and to that extent the objection will be overruled and exception allowed. But as far as any conduct of any search on that occasion, the objection will be sustained, the objection will be sustained, at least on the present showing." (R. 1048-49.)

The court further ruled that objections would be sustained as to any items taken in the January 14, 1961, search found applicable to Susanna Peek, but that there would be no objection to items taken with respect to Peek. Thereupon, Olrogg was allowed to take the stand to state that items taken on January 14, 1961, pertained only to Peek. Counsel for appellants then moved to strike any testimony given by Olrogg as to January 14, 1961, and "any subsequent testimony as to any leads that grew out of that particular contact as to Mrs. Peek. * * *" (R. 1049-51.)

With the jury still absent, the court heard this further testimony by Olrogg:

"Q. On that occasion January 14, 1961 what was the general matter that you discussed with Mrs. Peek other than the search?

"A. The general matter we discussed was the robbery at Fort Lewis and a general accounting as to their finances during the pertinent period of time.

"Q. All right. Now, as to the finances, had the matters that you discussed with Mrs. Peek already been obtained by you and other agents and your credit check that you began on the 12th?

"A. Most of these matters, as I recall, had been covered.

"Q. Did she have a record of these things that she showed you at this time that you had verified from your outside investigation?

"A. Yes.

"Q. And was your conversation with her a verification of the other leads, as you described, against her records of what she spent?

"A. Yes." (R. 1054-55.)

Thereupon, the court decided that "the best and safest way to treat it would be simply to exclude any statements or conversations or anything else occurring on the occasion of the January 14 visit to the house." (R. 1055.) Counsel for appellants renewed his objection to any statements taken from Susanna Peek by Olrogg at any time subsequent to January 14, 1961. The court then made this ruling:

"Your objection will so appear of record. I so understand it, and I now overrule that general objection but will treat the matter as we come along on the basis of the further evidence, if any, to be offered." (R. 1056.)

The one subsequent statement of Susanna Peek pointed to by appellants was a written statement executed by Susanna Peek at the F.B.I. office in Tacoma, Washington, on January 21, 1961. In that statement she said that she was voluntarily...