United States v. Collins

• Decision Date: 05 August 1965
• Docket Number: No. 15671.,15671.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Omar COLLINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

349 F.2d 296 (1965)

UNITED STATES of America, Plaintiff-Appellee, v. Omar COLLINS, Defendant-Appellant.

No. 15671.

United States Court of Appeals Sixth Circuit.

August 5, 1965.

John J. Cowan (Court appointed), Cincinnati, Ohio, for appellant.

John E. Stout, Asst. U. S. Atty., Louisville, Ky. (William E. Scent, U. S. Atty., Louisville, Ky., on the brief), for appellee.

Before WEICK, Chief Judge, and CECIL and EDWARDS, Circuit Judges.

CECIL, Circuit Judge.

This is an appeal from a conviction in the United States District Court for the Western District of Kentucky at Louisville, upon a three-count indictment charging the defendant-appellant, Omar Collins, with transporting in interstate commerce three falsely made checks in violation of Section 2314, Title 18, U.S.C. The appellant, represented by a lawyer of his own choosing, was tried before a jury and found guilty on all three counts of the indictment. He was sentenced to serve five years on each count, the sentences to run concurrently.

The appellant was arrested at a motel in Louisville, Kentucky, on May 24, 1963, by four agents of the Federal Bureau of Investigation. The arrest was made on a warrant issued in Detroit and in the hands of the F.B.I. of that city. The warrant had not yet reached Louisville but its contents had been communicated to the F.B.I. at Louisville. At the time of his arrest, the appellant had in his possession paraphernalia and material commonly used by a "professional check artist," including the checks which are the subject of the conviction from which this appeal is taken. A warrant was issued in Louisville on May 27, 1963, charging the appellant with offenses arising out of the possession of these checks. The Detroit warrant charged the appellant with impersonating a federal officer. This charge arose out of an incident involving a fraudulent check scheme. The charge was subsequently dismissed, not because the charge was invalid, but apparently for the reason that it was more expedient to try the appellant in Louisville.

The appellant was taken before a United States Commissioner on May 27th. On the 25th, the day after the arrest, he was interrogated by F.B.I. agents and signed a confession on the Detroit charge. This confession was not introduced into evidence but F.B.I. agent Powers testified to its contents. It is claimed on behalf of the appellant that this testimony should not have been admitted for the reason that the appellant was not taken before a commissioner without unnecessary delay, in compliance with Rule 5(a) of the Federal Rules of Criminal Procedure. This claim is based on the decisions of the Supreme Court in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. In these cases it was held that incriminating statements taken from an accused while he was illegally detained were not admissible.

No objection was made to the introduction of this evidence and the point was not raised at the trial or on motion for new trial. The question is raised for the first time on the supplemental brief of counsel for appellant. The evidence shows that the arrest was made at 6:30 p. m., on Friday, May 24th, and that the arraignment was made on Monday, May 27th. The statement in question was taken on Saturday, May 25th. There is nothing in the record to show that a commissioner was available during this time. The record on appeal cannot be supplemented in this Court and we cannot accept the affidavit of Agent Powers as to the availability of a commissioner. The evidence does not show that the appellant was illegally detained under the decisions of McNabb and Mallory, supra, and there is no claim that the confession was coerced. The evidence was admissible for the purpose of showing motive and intent. Under instruction of the trial judge, it was so limited.

Another objection made on behalf of appellant is that self-incriminating statements were admitted in evidence which were taken in the absence of appellant's counsel. At the arraignment before the commissioner, on May 28th, the appellant was represented by attorney F. Arnold Greever, Jr. On the following day, the appellant signed a confession of guilt on the three checks which are the subject of the prosecution now before the Court. On several days following this, he confessed to various other check operations throughout the country. When this confession was submitted to him in writing, he refused to sign it because the F.B.I. agents had not made arrangements for his wife to visit him in jail in accordance with an alleged promise. The signed confession was admitted in evidence and testimony was admitted on the oral self-incriminating statements concerning offenses in other cities. Objection to this testimony was made at the trial, on the ground that the statements were taken contrary to law. It is claimed by counsel in his brief that F.B.I. agents sought permission from Mr. Greever to interrogate the appellant and that this permission was denied. This does not appear in the record of the trial. The appellant signed an affidavit to this effect which is attached to the motion for new trial. This statement of the appellant is purely hearsay. He does not say that he heard this request by Mr. Powers and the denial of it by Mr. Greever. Mr. Greever is now deceased. Affidavits of F.B.I. agents with reference to this request cannot be considered as a part of the record on appeal. Counsel argues that the signed confession and the incriminating statements were inadmissible for the reason that they were taken when ap...