United States v. Hensley

• Decision Date: 23 February 1967
• Docket Number: No. 16455.,16455.
• Citation: 374 F.2d 341
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bige HENSLEY, Herbert Costello Stacy, Clayton Turner and Charles Engle, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

374 F.2d 341 (1967)

UNITED STATES of America, Plaintiff-Appellee, v. Bige HENSLEY, Herbert Costello Stacy, Clayton Turner and Charles Engle, Defendants-Appellants.

No. 16455.

United States Court of Appeals Sixth Circuit.

February 23, 1967.

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Leonard B. Boudin, New York City, I. Philip Sipser, Paul O'Dwyer, New York City, Dan Jack Combs, Pikeville, Ky., on brief; Henry Winestine, New York City, of counsel, for appellants.

Moss Noble, Asst. U. S. Atty., Lexington, Ky., George I. Cline, U. S. Atty., Lexington, Ky., on brief, for appellee.

Before EDWARDS and CELEBREZZE, Circuit Judges, and CECIL, Senior Circuit Judge.

EDWARDS, Circuit Judge.

Four appellants seek reversal of their convictions after jury trial in the Eastern District of Kentucky. The two-count indictments charge both a conspiracy to violate the Federal Train Wreck Act, Title 18 U.S.C. § 1992 (1964), and the substantive offense of violating it.

The cases arise out of the now generation old warfare which has raged intermittently in the Harlan-Hazard area of Perry County, Kentucky, between the United Mine Workers and its adherents and nonunion mine operators. These four defendants (and four others who were not convicted) were charged specifically with conspiring to place and placing a massive charge of nitroglycerin on the tracks above the center pier of a railroad bridge known as Daisy Bridge No. 4. This bridge is located in a remote area called Glomawr Hollow where the Louisville and Nashville Railroad tracks cross Leatherwood Creek enroute to a mine known as Leatherwood Mine No. 2. At the time this mine was nonunion.

This record — a transcript of over 3,000 pages, since on motion based on affidavits of poverty defendants were allowed to appeal without printing an appendix — reads a good deal more like the story of an incident in a guerrilla war than the normal appellate record before this court.

The appeals present every issue which capable lawyers can now devise concerning criminal trials where convictions were based (at least in important degree) upon defendants' own confessions.

Each of these four defendants confessed. The confessions were in writing, preceded by the then standard FBI warnings and signed by defendants. The District Judge conducted extensive hearings on the claim of involuntariness of these confessions. He took testimony before the trial and at the trial (with the jury absent). He made independent adverse findings of fact as to appellants' claims of improper inducement and psychological coercion. Subsequently, he submitted the issue of voluntariness of the confessions in his charge to the jury. After receipt of "guilty" verdicts, he resubmitted the question of voluntariness as a special question in each case.

Three defendants (Hensley, Turner and Stacy) testified at the independent proceedings before the judge. The District Judge's finding of facts at the conclusion of the first of these independent proceedings (which we find amply supported by this record) will serve to state the basic facts against which we are asked to review many legal issues:

"This prosecution grows out of a situation of labor-management strife in 1963 in the coalfields region of Eastern Kentucky. There were two or more groups of `roving pickets\' active in the area, and law enforcement officers had the defendant Berman Gibson and his 1953 Ford automobile under surveillance in this connection. Several bridges of the Louisville and Nashville Railroad Company, along tracks which served these coalfields, had been destroyed or damaged by the vandalistic use of high explosives in the six months period preceding June 11, 1963.

"On that date John Mitchell Smith, an inspector, and Cleon Begley, a sergeant, of the L. and N. police, were patroling their employer\'s tracks in an isolated area south of Hazard, in Perry County, Kentucky, in a motorcar being driven by Sgt. Begley. They stopped on a hill overlooking a railroad bridge at Daisy, Kentucky, about 1:45 or 2:00 a. m. in the course of their patroling activities. As their vehicle stopped, Inspector Smith flashed the vehicle\'s spotlight on the bridge, and the officers saw two men standing near a three-foot stack of materials (afterward ascertained to be high explosives) just above the center pillar of the bridge. The officers alighted from the vehicle quickly, and Sgt. Begley fired a dozen or more shots from a 30-caliber carbine in the direction of the trespassers, who fled off the north end of the bridge into bushes. The officers thereupon re-entered their automobile and drove rapidly in the same direction to a road leading off of Kentucky state highway route 699 around the north end of the Daisy bridge. There, parked just off the roadway, the officers saw the defendant Gibson\'s automobile, in which an unidentified occupant was seated under the steering wheel. The officers drew their weapons and ordered the occupant out of the Gibson vehicle and into their own. The defendant Bige Hensley emerged without further action and was placed in the back seat of the car Sgt. Begley had been driving. Although it appears from the evidence that the defendant Mr. Hensley may not ever have been formally arrested, from that time of the officers\' interruption, Mr. Hensley\'s liberty of movement was restricted by these and other officers and, for purposes of this action, his arrest was complete. Henry v. United States (1959), 361 U.S. 98, 103, 80 S.Ct. 168, 4 L.Ed.2d 134.

"The officers then investigated further. On the front seat of the Gibson automobile, they found and seized a 25-caliber automatic pistol and in the back seat¹ a roll of blasting fuse. They asked their prisoner to identify the materials on the bridge, and Mr. Hensley replied that he did not know; otherwise, the railroad policemen did not interrogate the prisoner. Suspecting the material to be high explosives, the officers undertook to (1) prevent its detonation, (2) preserve this evidence of crime and (3) apprehend the other trespasser or trespassers they had previously seen on railroad property. While Mr. Hensley was in custody in the automobile, Sgt. Begley heard noises in a nearby wooded section, called for anyone therein to identify themselves, and receiving no response, fired additional shots in the direction of the noises heard. Further investigation by the officers revealed that the material they had previously seen on the railroad bridge was large quantities of both liquified and solidified nitroglycerin with blasting fuses and caps attached and `ready to go.\'

"With the defendant Mr. Hensley still in custody, the officers then drove their motorcar to the nearest railroad telephone at Dent, Kentucky, to summon help.² Trooper Homer Howard, of the Kentucky State Police, arrived on the scene at about 3:00 o\'clock a. m. He placed handcuffs on Mr. Hensley in order that one or more of the officers guarding Mr. Hensely might participate in a search of the surrounding area. Two additional Kentucky troopers arrived half an hour later, and about 4:30 a. m., Andrew L. Carnegie, a special agent of the Federal Bureau of Investigation, Department of Justice, arrived. None of these officers interrogated the defendant Mr. Hensley, except that the FBI agent obtained information concerning his identification and inquired what Mr. Hensley was doing at that place at that hour.³ FBI agent Swearingen arrived at the scene about 7:15 o\'clock a. m., and a number of additional officers also came upon the scene to assist with the investigation. The general investigation continued throughout the remainder of the day, and one or more of the defendants were discovered afterward in the general region of Daisy. The nearest committing magistrate of the Commonwealth of Kentucky resided at Leatherwood, about six miles from the L. and N. bridge at Daisy, and the nearest United States commissioner was located about 70 miles distant at Jackson, Kentucky.

"After the explosives on the bridge had been removed by experts called to the scene for that purpose, the two FBI agents transported the defendant Mr. Hensley the 22 miles to the Kentucky State Police barracks at Hazard where Mr. Hensley was photographed and fingerprinted. He was then taken before the United States Commissioner at Jackson where he was arraigned about 1:00 o\'clock, p. m. This defendant was then incarcerated in lieu of bail bond in the federally-approved jail in Lexington, Kentucky.

"Special FBI agent John F. McCauley interviewed the defendant Mr. Hensley in the Fayette County jail at Lexington for about two hours on June 13, 1963, and for about one hour on June 20, 1963. The defendant Mr. Hensley had advised Agent McCauley that he had no counsel and did not intend to employ a lawyer.⁴ Mr. McCauley considered his interrogation of the defendant Mr. Hensley complete on the latter date; however, in response to a message relayed to him from Mr. Hensley, the agent returned to the jail on the following day, and Mr. Hensley signed a written confession.

"On June 20, 1963, the defendant Messrs. Britt Baker, Adam Huff, Berman Gibson, Charles Engle, Herbert Stacy and Tommy Allen Combs appeared separately before Hon. Kash C. Williams, United States Commissioner, at Jackson, Kentucky. Messrs. Huff, Engle and Stacy waived preliminary examination, and Messrs. Baker, Gibson and Combs requested examinations."

Appellants claim generally in their stated questions 1, 7 and 8 that a new trial should be granted because of the admission of their confessions and other evidence procured in violation of their rights under the Fourth, Fifth and Sixth Amendments.

Somewhat more specifically, at argument of this case the most important issue developed was that these confessions were elicited by in-custody interrogation without the presence of legal counsel. The record contains credible testimony that each defendant was warned of his constitutional rights in traditional language, but it is clear that they were...