Stowers v. United States

• Citation: 351 F.2d 301
• Decision Date: 05 November 1965
• Docket Number: No. 19439.,19439.
• Parties: John Edward STOWERS, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

351 F.2d 301 (1965)

John Edward STOWERS, Appellant, v. UNITED STATES of America, Appellee.

No. 19439.

United States Court of Appeals Ninth Circuit.

September 23, 1965.

Rehearing Denied November 5, 1965.

Gordon C. Gould, Redwood City, Cal., for appellant.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Div., Phillip W. Johnson, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before ORR, MERRILL, and ELY, Circuit Judges.

ELY, Circuit Judge.

Appellant, together with an alleged confederate, one Kirtley, was charged with scheming to obtain money by false pretenses and unlawfully causing interstate transmittal of the money. 18 U.S. C. § 1343. Kirtley pleaded guilty to the charge, and appellant was convicted in a jury trial. In the same trial, the jury determined that appellant was guilty of two of twelve offenses with which he alone was accused in a separate indictment. One of the two offenses of which appellant was found guilty under the separate indictment was also the violation of Section 1343 of Title 18. The other involved the interstate transmission of a telephone communication in which appellant was alleged to have conveyed threats with the unlawful intent to extort money. 18 U.S.C. § 875(d).

Shortly after their arrests, appellant and Kirtley were confined in the same cell, where they engaged in conversation. During the trial, Kirtley testified that in-the conversation, appellant had made certain statements which appellant contends were incriminating "admissions" which, under the circumstances, were improperly received as evidence.

The oral statements can hardly be characterized as "admissions." When Kirtley initiated the conversation with the question, "I wonder how we got picked up?", appellant, according to Kirtley, replied, "You know what is going to happen if you say anything." Kirtley testified that in the ensuing discussions, appellant attempted to persuade Kirtley to make certain representations as to Kirtley's participation and the absence of appellant's participation in one of the transactions. Additionally, Kirtley testified that appellant suggested that Kirtley plead guilty and promised to send Kirtley five or ten dollars per week if he, Kirtley, should be sent to prison. Finally, it was told by Kirtley that appellant threatened to kill Kirtley if the latter "took him appellant to prison with him."

Regardless of whether or not the alleged statements constituted "admissions", they were doubtless subject to inferences which were, from appellant's standpoint, damaging if not literally incriminating. This conclusion, however, affords no sufficient basis upon which to support appellant's claim of prejudicial error.

There is no law, constitutional or otherwise, which protects an alleged criminal against his own failure to remain mute in every environment and under all circumstances.

Immediately after his arrest, appellant requested the assistance of counsel and was told by...