United States v. Akin, 28855.

Decision Date14 December 1970
Docket NumberNo. 28855.,28855.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Herbert Hoover AKIN, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Jerome C. Ables, South Pittsburg, Tenn. (court appointed) for Herbert Hoover Akin.

Wayman G. Sherrer, U. S. Atty., R. Macey Taylor, L. Scott Atkins, Asst. U. S. Attys., Birmingham, Ala., for plaintiff-appellee.

Before THORNBERRY, GOLDBERG and AINSWORTH, Circuit Judges.

THORNBERRY, Circuit Judge:

This is an appeal from a jury conviction for unlawfully receiving and possessing goods transported in interstate commerce.1 Appellant contends that an incriminating statement obtained from him by the FBI was impermissibly admitted against him in his trial because he was not given a proper Miranda warning.2 After a careful review of the record, we have concluded that appellant was not entitled to Miranda warnings because he was not "in custody" at the time he was questioned.

Because of the difficulty of formulating a precise definition of "custodial interrogation" this Court takes a "case-by-case" approach to resolving questions of custodial interrogation. Agius v. United States, 5th Cir. 1969, 413 F.2d 915, 918. A particularized rendition of the facts in each case is therefore of utmost importance.

This case arises out of the theft of certain television sets bound for Richmond, Virginia, aboard a Louisville & Nashville Railroad car. On February 2, 1969, this rail shipment was broken into near Sherwood, Tennessee, approximately fifteen miles from the Alabama border. FBI agents began investigation of the theft, and in the course of their investigation traveled to Stephenson, Alabama, about twenty-five miles from the point at which the break-in occurred. In Stephenson, the agents went to the appellant's place of business, a TV repair service known as "Herb's TV," to inquire whether appellant had any knowledge about the stolen television sets. At this time, the investigation appeared to be of a general nature; no warrant existed for appellant's arrest and no charges had been made against him. When the agents first arrived at "Herb's TV," appellant was not in, but he subsequently drove into the parking lot in front of his store. The agents approached him, identified themselves, told him the purpose of their inquiry, and asked appellant to talk with them about the missing sets. Appellant agreed, and the agents asked him to sit with them in the Bureau car. Before asking appellant any questions, one of the agents gave appellant what purported to be a Miranda warning, but which failed to comply exactly with the requirements of Miranda.3 After receiving this warning appellant agreed to talk orally with the agents about his knowledge of the existence or whereabouts of the TV sets.

Appellant then proceeded to tell the agents that a man named Bobby Joe Roberts had come to his shop and offered to sell him three TV sets at half the dealer's cost. Ultimately he and Roberts agreed to trade the sets for a used 1958 Cadillac, which appellant valued at $100. Appellant further stated that a few days later he discovered that the TV sets came from the Railroad "heist" in Sherwood and he became afraid of the sets and sold one and took the other two to his wife's niece in South Pittsburg, Tennessee. Appellant agreed to take the agents to South Pittsburg to retrieve these two sets, and that same day he and the agents traveled together to South Pittsburg and recovered the sets. When they returned to Stephenson, one of the agents wrote out appellant's statement and appellant signed it. That night appellant went alone to Chattanooga to recover the third set and the following day he returned to Stephenson and turned that set over to the FBI.

The only basis suggested by appellant for finding that there was "custodial interrogation" in this case is that the FBI did give some warning to appellant prior to questioning him. Thus, appellant asks, "If this were not a custodial interrogation, why would the agents give warnings?" We cannot accept appellant's suggestion. To rule that an FBI agent's extra-cautious efforts to inform a person of his constitutional rights converts an otherwise non-custodial situation into "custodial interrogation" could easily work to...

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29 cases
  • Cummings v. State
    • United States
    • Court of Special Appeals of Maryland
    • July 1, 1975
    ...from actual or implied coercion and were therefore properly admitted into evidence.' Under similar circumstances in United States v. Akin, 435 F.2d 1011 (5th Cir. 1970), the Court of Appeals said, at 'The only basis suggested by appellant for finding that there was 'custodial interrogation'......
  • State v. Bridges, 101,222.
    • United States
    • United States State Supreme Court of Kansas
    • August 9, 2013
    ...to the police and can have legal counsel, most people undoubtedly associate Miranda warnings with arrest”). Compare United States v. Akin, 435 F.2d 1011, 1013 (5th Cir.1970) (the mere giving of Miranda warnings does not convert an otherwise noncustodial situation into a “custodial interroga......
  • Cotton v. State
    • United States
    • Court of Appeals of Maryland
    • April 11, 2005
    ..." `[A] custodial situation cannot be created by the mere giving of modified Miranda warnings'"), quoting United States v. Akin, 435 F.2d 1011, 1013 (5th Cir.1970); Alicea, 381 N.E.2d at 149-50 (providing that "[t]he imparting of Miranda warnings was not tantamount to or suggestive of an arr......
  • People v. Wipfler
    • United States
    • Supreme Court of Illinois
    • October 5, 1977
    ...the interrogation was custodial. A custodial situation cannot be created by the mere giving of Miranda warnings. United States v. Akin (5th Cir. 1970), 435 F.2d 1011, 1013; United States v. Sicilia (7th Cir. 1973), 475 F.2d 308, In addition to the timeliness of the warning of Miranda rights......
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