United States v. Fay

• Citation: 370 F.2d 547
• Decision Date: 27 December 1966
• Docket Number: Docket 30165.,No. 41,41
• Parties: UNITED STATES of America ex rel. John F. McBRIDE, Appellant, v. Hon. Edward M. FAY, as Warden of Green Haven Prison, Stormville, New York, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

370 F.2d 547 (1966)

UNITED STATES of America ex rel. John F. McBRIDE, Appellant, v. Hon. Edward M. FAY, as Warden of Green Haven Prison, Stormville, New York, Appellee.

No. 41, Docket 30165.

United States Court of Appeals Second Circuit.

Argued September 22, 1966.

Decided December 27, 1966.

Robert I. Fisher, New York City (Anthony F. Marra, New York City, on the brief), for appellant.

Iris A. Steel, Deputy Asst. Atty. Gen., State of New York (Louis J. Lefkowitz, Atty. Gen., and Samuel A. Hirshowitz, First Asst. Atty. Gen., State of New York, on the brief), for appellee.

Before WATERMAN, MOORE and ANDERSON, Circuit Judges.

PER CURIAM:

Petitioner, together with two co-defendants, was convicted of robbery in the first degree in the County Court for Suffolk County, New York in 1957. During the trial, a confession of one of petitioner's co-defendants, inculpating petitioner, was admitted in evidence, but the jury was instructed that the statement could not be used against McBride. Also during the court's charge the jury was told on several occasions that the co-defendant's confession could not be used to convict McBride. On the objection of petitioner's counsel, the exhibits, including the confession, were not placed in the hands of the jury. After the jury had commenced its deliberations, it asked to be returned to the courtroom to hear the confession re-read. This was done but neither the petitioner nor his counsel was notified and neither was present, nor were the instructions repeated, cautioning the jury against the use of the confession to convict McBride. His direct appeal, through and including denial of certiorari by the United States Supreme Court, and his quest for a writ of habeas corpus through the state courts were based upon the claim that he was denied a fair trial because of the circumstances of the re-reading of the confession. He was denied relief. He then petitioned for a writ of habeas corpus on the same ground in the United States District Court which also denied his petition. It is from that denial that he appeals.

Now, however, relying on recent cases of the United States Supreme Court and of this court, Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); United States ex rel. Floyd v. Wilkins, 367 F.2d 990 (2 Cir. 1966); United States v. Bozza, 365 F.2d 206 (2 Cir.1966), he contends, in addition to the other claims, that the procedure employed in admitting the confession into evidence deprived him of his Sixth Amendment right to confront the witnesses against him. He argues that the many references to him in his co-defendant's confession, and the highly inculpatory nature of everything said about him in the statement, made it virtually impossible for the jury to convict the co-defendant without convicting him on the same evidence; that the other evidence in the case against him was scanty and that even under the holding in Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), the circumstances were such that the jury could not reasonably be expected to have followed the court's instruction not to use the co-defendant's confession against him. Moreover, he asserts that the decision in Delli Paoli, which held that the admission, under proper instructions, of a co-defendant's...