United States v. Morgan, 17773

• Decision Date: 27 May 1968
• Docket Number: No. 17773,17774.,17773
• Citation: 394 F.2d 973
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles MORGAN and Daniel Dresden DeFoe, Defendant-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

394 F.2d 973 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Charles MORGAN and Daniel Dresden DeFoe, Defendant-Appellants.

Nos. 17773, 17774.

United States Court of Appeals Sixth Circuit.

May 27, 1968.

James S. Shields, Memphis, Tenn., for appellant Morgan.

Clyde P. West, Memphis, Tenn., for appellant DeFoe.

William A. McTighe, Jr., Memphis, Tenn. (Thomas L. Robinson, U. S. Atty., Memphis, Tenn., Fred M. Vinson, Jr., Asst. Atty. Gen., Dept. of Justice, Criminal Division, Washington, D. C., on the brief), for appellee.

Before O'SULLIVAN, CELEBREZZE and McCREE, Circuit Judges.

O'SULLIVAN, Circuit Judge.

We consider the appeals of Charles Morgan and Daniel Dresden DeFoe from convictions for their participation in the handling of three $10,000 United States Treasury bearer bonds, which had been stolen from the courthouse in Senatobia, Mississippi, and transported to Memphis, Tennessee. Of a ten-count indictment, Morgan was convicted under Counts I and II which charged, respectively, that on or about November 30, 1965, and in violation of 18 U.S.C. §§ 2314 and 2, he and another "transported in interstate commerce" the described bonds "knowing the same to have been stolen"; and that on or about December 1, 1965, he and others did "receive, conceal and store" the bonds "which were moving as and which constituted interstate commerce * * * knowing the same to have been stolen * * * in violation of Title 18, U.S.C. Section 2315 and Section 2." He received a ten year sentence on each count — to be served concurrently.

DeFoe was convicted under Counts V and X of the same indictment, which respectively charged that on or about January 28, 1966, he and another "did receive, conceal, store and sell" the bonds "which were moving as and which constituted interstate commerce * * * knowing the same to have been stolen, in violation of Title 18, U.S.C. Section 2315 and Section 2"; and "that on or about December 21, 1965, and continuously thereafter up to and including February 23, 1966" he, Daniel Dresden DeFoe, Charles Morgan, James Thomas Moore and one other did conspire to "receive, conceal, store, barter, sell, and dispose of" the bonds "which were moving as, were a part of and which constituted interstate commerce * * * knowing the same to have been stolen, as proscribed by Title 18, U.S.C. Section 2315, all in violation of Title 18, U.S.C. 371." He received a five year sentence on each count — to be served concurrently.

Appellant Morgan seeks reversal, claiming that his confession of the crime was not voluntary and should not have been received in evidence. DeFoe charges that his acquittal should have been directed, that he should have been granted a severance and that there was error in the District Judge's instructions. We affirm.

1. Admissibility of Morgan's confession, No. 17,773.

On the night of November 30, 1965, the Tate County, Mississippi, courthouse at Senatobia, Mississippi, was burglarized, obviously by professionals. After breaking into the building, the burglars bored a hole in a 21-inch masonry wall through which they entered the vault in the Chancery Clerk's office. From a safe they abstracted securities, including three $10,000 United States Treasury bearer bonds. These were transported to Memphis, Tennessee, by Morgan and another; there they were acquired by DeFoe, who sold them for $1,000. State and federal criminal statutes were violated by the transactions and the police authorities of Tennessee and Mississippi and the FBI sought those who had committed the crimes. Investigation turned up clues pointing to Morgan and he was arrested on January 14, 1966, by state officers who confined him in the county jail at Memphis, Tennessee.

Morgan had a long criminal record. He had been under numerous Tennessee charges when he was released on bail on October 31, prior to the Senatobia offense of November 30, 1965. After his above arrest he was named in nine separate Tennessee charges and there was a warrant for him in Mississippi. There were also charges pending against him from Texas for the alleged theft of an automobile. During Morgan's stay in jail at Memphis, he was talked to by state officers of Tennessee, the Sheriff — A. C. Blair — of Tate County, Mississippi, and FBI agents. They were seeking solution of the breaking and entering at Senatobia, the transportation of the stolen bonds, and other crimes. Later, as discussed below, Morgan dictated a confession, giving a detailed and accurate description of the breaking and entering and the theft of the bonds and identified himself and one Barton as the perpetrators of the crime. In repudiating his confession at trial, he claimed that he became acquainted with the facts of the burglary from listening to the many discussions of it while he was in jail. The disbelief of his story in this regard by the trial judge and the jury is quite understandable.

Morgan remained in the Shelby County jail until March 8, 1966. No federal charge had been made against him up to that time. Morgan testified that sometime, on or prior to that date, he told Sheriff Blair that if he could be released on bail he would go and get the stolen bonds and deliver them to the sheriff. He also said that he promised to give FBI Agent Keenan a statement, as a condition of his release. Keenan denied that such a "deal" had been made and denied that Morgan was offered or promised anything in exchange for his statement. Sheriff Blair did assist Morgan to make the $2,000 bail, and he was released on March 8, 1966. Morgan's self-contradictory testimony at one point states that FBI agent Keenan advanced the sum of $300 needed to pay the bondsman. Keenan denied this and said he gave no assistance to Morgan in this regard.

Keenan was notified when Morgan was being released and met him when he came out of the jail. At that time no federal charges were pending against Morgan. It will be sufficient to say that Morgan did go with Keenan to the Memphis office of the FBI and there dictated a full confession to one of the stenographers in that office. Present while this was being done was Sheriff Blair, who had been called by agent Keenan, and another FBI agent. Keenan called a lawyer, Robert Pepper, who had made an appearance for Morgan, and told Pepper that Morgan was about to make a statement and that he could be present if he cared to. The lawyer declined. Thereupon, Morgan signed two papers as follows:

"I, Charles Morgan hereby waive my right to have my lawyer, Robert Pepper, present while I discuss my part of the Senatobia Chancery Court Clerk\'s office, Senatobia, Miss.

"Signed. Charles Morgan."

"I, Charles Morgan, have come to the Memphis, Tenn. office of the FBI (Federal Bureau of Investigation) of my own choice to talk with Special Agents of the FBI about a crime which they are investigating. I know that I am not under arrest and that I can leave this office if I wish to do so. I also know that I have a right to say nothing at all, that anything I do say may be used in a court of law, and that if I do say anything about a crime I have a right at any time to talk with a lawyer of my own choice, or anyone else to whom I might wish to speak, before saying it. I have been told of these rights today by Special Agent Charles M. Keenan of the FBI.

"Signed: Charles Morgan."

Morgan then proceeded to dictate an extensive account of the Senatobia affair and the transportation of the stolen bonds. He gave an account of the handling of the Treasury bonds after they arrived in Memphis and their coming into the possession of appellant Daniel Dresden DeFoe at the latter's establishment, known as the Casual Aire Lounge.

Dictation of the above statement took until about 5:00 P.M., too late for the stenographer to transcribe her notes, so it was arranged that Morgan would return the following day to sign the statement. He called Keenan the next day saying he was delayed but would be in. He did not return and admits that he had no intention of doing so; that his promise to get and return the bonds and his dictating the confession to the FBI was all part of a scheme to get out of jail and disappear. Morgan's next criminal enterprise was in the State of Illinois where, on March 10, 1966, two days after his flight from Memphis, he was engaged in activity eventuating in his plea of guilty to "assault to murder." He was brought from an Illinois prison for the involved trial which began on October 3, 1966.

Obedient to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), District Judge Bailey Brown made his own determination, out of the presence of the jury, that the confession was voluntary, and submitted the same question to the jury under instructions not criticized by appellant. Morgan testified on both occasions that FBI agent Keenan promised that in exchange for the confession and return of the stolen bonds, he would see that pending, or threatened, federal charges would be dropped. Morgan also stated that after his release on bail Keenan really kept him in custody until he agreed to go to the FBI office and make a statement. Both Keenan and Sheriff Blair denied Morgan's account and testified that Morgan was not in custody or under any restraint or compulsion when he gave his statement to the FBI. Thus an issue of fact was resolved against Morgan by the District Judge and by the jury. There was clearly sufficient evidence to permit such findings.

In Davis v. State of North Carolina, 384 U.S. 737, 741-742, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966), we were admonished, as an appellate court, "to examine the entire record and make an independent determination of the ultimate issue of voluntariness." We have done so and have determined that Morgan's confession was voluntary. In doing so we have followed the rule we recognized in our recent decision of United States v. Hindmarsh, 389 F.2d 137, 143 (6th Cir. 1968), viz: that attention should be given to the intellectual...