Rademacher v. United States

• Decision Date: 23 December 1960
• Docket Number: No. 18317.,18317.
• Citation: 285 F.2d 100
• Parties: Clifford Lee RADEMACHER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

285 F.2d 100 (1960)

Clifford Lee RADEMACHER, Appellant, v. UNITED STATES of America, Appellee.

No. 18317.

United States Court of Appeals Fifth Circuit.

December 23, 1960.

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

Paul N. Brown, U. S. Atty., Joe Tunnell, Asst. U. S. Atty., Tyler, Tex., for appellee.

Before TUTTLE, Chief Judge, and RIVES and JONES, Circuit Judges.

JONES, Circuit Judge.

The appellant, while a prisoner serving a sentence at the Federal Correctional Institution at Texarkana, Texas, went over the wall, was pursued, captured and returned to the Institution. He was tried for violation of the Federal Escape Act, 18 U.S.C.A. § 751, and appeals from a conviction. Several contentions are made by the appellant, one of which is that the evidence was insufficient to take the case to the jury. The appellant had been a guard in a Louisiana prison and this, he claimed, had resulted in attacks on him by other inmates at Texarkana and placed his life in jeopardy. He took leave, he insisted, not for the purpose of departing permanently but only to be placed in maximum security where he would not be exposed to the danger to life and limb resulting from mingling with other prisoners. The lack of intent to escape was shown, so he says, by the fact that he only ran until he thought he was out of the range of the gun fire of his pursuers and then stopped in a drainage ditch until he was captured. The Government showed that the appellant had taken with him a small plastic bag which contained some candy and a map of Arkansas which had been removed from a volume of an encyclopedia in the prison library. On being retaken into custody the appellant outlined the travel plans he had made and these would have taken him through Arkansas and into Louisiana. The evidence was more than enough to sustain the conviction.

The appellant says that when the statements attributed to him were made he had not been taken before a Commissioner nor been informed of his right to counsel or his right to refrain from self-incrimination. The McNabb rule,¹ that a confession is inadmissible if made during illegal detention due to failure to carry a prisoner before a committing magistrate, does not apply where a prisoner is in legal custody. United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48. Thus the confession of a prisoner serving a sentence who has been retaken into custody after an unauthorized departure may be received although made before any taking of the prisoner before a magistrate, unless, of course, the confession was exacted by torture, threats or other unlawful means, Mullican v. United States, 5 Cir., 1958, 252 F.2d 398, 70 A.L.R.2d 1217. The confession was properly admitted.

To show that the appellant was in lawful custody at the time he absented himself, a certified copy of the judgment and sentence of his conviction was offered and received in evidence. The appellant urges that the custodian of the record should have been brought in as a witness to testify as to the copy and be subjected to cross-examination. The requirements for authentication² were met and there was no necessity for the production of the custodian. Wong Wing Foo v. McGrath, 9 Cir., 1952, 196 F.2d 120. The copy...