United States v. Hindmarsh

• Decision Date: 10 January 1968
• Docket Number: No. 17252,17430.,17252
• Citation: 389 F.2d 137
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Edmund HINDMARSH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Edward HINDMARSH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

389 F.2d 137 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. William Edmund HINDMARSH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Charles Edward HINDMARSH, Defendant-Appellant.

Nos. 17252, 17430.

United States Court of Appeals Sixth Circuit.

January 10, 1968.

R. Edward Tepe, Cincinnati, Ohio (Court appointed), for appellant William Edmund Hindmarsh.

William J. Dammarell, Cincinnati, Ohio (Court appointed), for appellant Charles Edward Hindmarsh.

Joel M. Shere, Asst. U. S. Atty., Detroit, Mich., for appellee, Lawrence Gubow, U. S. Atty., Detroit, Mich., on brief.

Before WEICK, Chief Judge, and O'SULLIVAN and PHILLIPS, Circuit Judges.

O'SULLIVAN, Circuit Judge.

This cause presents the appeals of William Edmund Hindmarsh and his brother, Charles Edward Hindmarsh, from their conviction upon jury trial of aiding and abetting the armed holdup of a federal credit union (Count II) and conspiring to commit the robbery with two gunmen who carried it out (Count III). Title 18, U.S.C. §§ 2(a), 371, 2113(a) and 2113(g). We affirm the judgments of the District Court.

On August 21, 1964, two gunmen entered the Redeemer Parish Federal Credit Union on West Vernor, Detroit, Michigan, at gun point had its employees lie on the floor, and robbed the establishment of approximately $3,000. Escape was made in an automobile which had been appropriately stationed for such purpose.

The government's evidence established that a Paul Junior Shampo and a Raymond Cordy were the gunmen; appellant William E. Hindmarsh was the driver of the getaway car; appellant Charles E. Hindmarsh had "cased" the premises, provided his brother with the getaway car, furnished the needed guns, and had joined his brother and one of the gunmen in a briefing session a night or two before the robbery; he was denied actual participation in the affair by his wife's confinement and delivery of a son on the day of the robbery. One of the gunmen, Raymond Cordy, charged in Count I with committing the robbery, was tried and convicted with the Hindmarsh brothers. He has not appealed. The other gunman, Paul Shampo, pleaded guilty and testified for the government at trial. The appellants were each given concurrent prison sentences of twenty years and five years under Counts II and III, respectively.

Both of the Hindmarshes made written confessions of their guilt. They initially attempted to plead guilty upon being taken before a United States District Judge shortly after their arrests in mid-December, 1964. The Judge refused to accept such pleas. Upon arraignment, defendants stood mute and pleas of not guilty were entered. Several weeks later both appellants appeared with their attorneys before then District Judge Wade H. McCree, and moved to withdraw their pleas of not guilty and enter guilty pleas to aiding and abetting the holdup as charged in Count II. The District Judge accepted the guilty pleas after determining that they were voluntary. He conducted a searching inquiry that would satisfy the most exacting champion of the rights of the criminally accused. Several weeks later, however, appellants moved to withdraw their guilty pleas. Their motions were allowed.

The appeal of William Hindmarsh presents essentially one issue: should his confession, given to an agent of the Federal Bureau of Investigation, have been denied admission into evidence on the grounds either that it was, under recent teachings of the United States Supreme Court, involuntary, or had been improperly obtained by federal officers cooperating in a "working arrangement" with local police officers (Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829 (1943)) after the local officers had denied appellant access to counsel in violation of his rights under Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). If the means employed to obtain the confession of William Hindmarsh offended the rules announced by the Supreme Court in those decisions, his conviction must be reversed, regardless of the weight of the other evidence against him. Escobedo v. State of Illinois, supra, at 491, 84 S.Ct. 1758; Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Lynumn v. State of Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963).

Appellant Charles Hindmarsh presents three questions on appeal: (1) Was his own confession, given to the FBI several days after he had been advised that the Court would appoint counsel for him, inadmissible under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) and Escobedo v. State of Illinois, supra; (2) Did the Court err in not deleting sua sponte his name from William's confession; and (3) Did the Court err in allowing codefendant Shampo to testify to an inculpatory statement made to him by Charles Hindmarsh two days after the robbery?

1. Confession of William Hindmarsh.

The contention made can be relevantly assessed only if the factual picture surrounding the confession is set out in some detail. As is typically the case where a confession is alleged to have been improperly obtained, the several versions offered of the "historical facts," Culombe v. Connecticut, 367 U.S. 568, 603, 81 S. Ct. 1860, 6 L.Ed.2d 1037 (1961), are materially in conflict. Hindmarsh's own accounts of the facts exhibit variations and contradictions. We fairly review the facts as follows.

a) Conduct of Detroit Officers on Night of December 13.

The Redeemer Federal Credit Union holdup occurred August 21, 1964. It was a federal crime, 18 U.S.C. §§ 2113(a) and (g), and the Federal Bureau of Investigation had it under investigation from then until its solution on December 14 and 15, 1964. During the same period the Detroit Police Department was continuously seeking solutions to the ever-increasing number of armed robberies and the killings that so often accompany them. Quite evidently, the FBI agents at Detroit and the Detroit Police are in touch with and aid each other by exchanging information. There had been a Detroit bar holdup on December 10, 1964, in which a patron or employee of the bar had been shot. In seeking solution of this and other robberies, the Detroit Police took into custody one Paul Shampo, who gave them information which put both of the appellants Hindmarsh under suspicion.¹

On Sunday evening, December 13, 1965, three Detroit police officers and one Clawson, Michigan, officer arrested William at his home in Clawson. While the police were on their way to the Clawson station, William's wife called a Clawson lawyer, Steven M. Andrews, who arrived at the station before the police. While there is disagreement as to the total context of the events at the police station, attorney Andrews was there denied opportunity to consult with his client. William was not interrogated, nor did he make admissions at Clawson. The attorney was told that Hindmarsh was in custody of the Detroit police and that if he cared to talk to him, he should follow the officers to the Detroit Police Headquarters several miles away. Andrews chose not to do so, but called his client's wife and told her to have a lawyer go to the Detroit police station. He gave her the name of two lawyers that she might call. No attorney came to Detroit that night. Upon arrival in Detroit, Hindmarsh was placed in a cell. Approximately two hours later, at about 10:00 P.M., he was questioned by two Detroit detectives, Arnold and Yakush, about his possible participation in some Detroit robberies, including the one which involved a shooting. He testified, "I was accused of many things," and that he wanted to see his attorney whom he thought had come from Clawson. The officers truthfully told him that no attorney had come to see him; he said that he would like to see an attorney before he would make any statement. This conference lasted about one-half to three-quarters of an hour; the officers learned nothing from him and he was returned to a cell without any further questioning. He was allowed to, and did, call his wife, telling her to get an attorney to the station. He said he told her that "these people would not let me see an attorney." The fact is that no attorney attempted to see him there. Nothing further occurred that night.

b) Conduct of Detroit Officers on Morning of December 14.

The next morning, December 14, after breakfast, William was brought from his cell and asked to go in a lineup. He said he would not do so without seeing an attorney. He was accordingly not put in the lineup, but was returned to his cell. Some time thereafter he was again questioned by the Detroit officers for approximately a half hour. He learned from a Detroit Police Lieutenant, Arnold, that Paul Shampo, also then in custody, had implicated Charles as well as himself in the credit union holdup; at the suggestion of the Lieutenant, he and Shampo had a private conference in which Shampo emphasized that they were both involved as suspects in some Detroit robberies including the shooting affair, as well as the credit union robbery. Hindmarsh testified that he assumed that Shampo was guilty of the shooting and that he assumed that Shampo assumed that William was also involved in the shooting.² Shampo told him, Hindmarsh said, that the police had told him, Shampo, that if he would "go federal" and plead guilty to the Credit Union robbery, he would get 90 days, the state charges would be dropped and Shampo would thus avoid exposure to a life sentence should the wounded bar patron die. It was suggested too that the reward for "going federal"³ would also be available to Charles Hindmarsh. Learning that his brother Charles was also a suspect in the state robbery charges, as well as the credit union holdup, and without consultation with Charles, William decided to get him involved in the enterprise of "going federal" by identifying Charles as a...