United States v. Murphy, 16895-16896.

• Decision Date: 27 October 1969
• Docket Number: No. 16895-16896.,16895-16896.
• Citation: 413 F.2d 1129
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Bradford MURPHY, a/k/a Samuel George Matz, and Elizabeth Irene Murphy, a/k/a Elizabeth Irene Matz, Defendants and Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

413 F.2d 1129 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Bradford MURPHY, a/k/a Samuel George Matz, and Elizabeth Irene Murphy, a/k/a Elizabeth Irene Matz, Defendants and Appellants.

Nos. 16895-16896.

United States Court of Appeals Sixth Circuit.

June 12, 1969.

As Amended September 12, 1969.

Certiorari Denied October 27, 1969.

Thomas S. Shore, Jr., Cincinnati, Ohio, for appellant Robert B. Murphy; Taft, Stettinius & Hollister, Cincinnati, Ohio, on brief.

Robert Bradford Murphy, Elizabeth Irene Murphy, pro se.

George G. Newman, Asst. U. S. Atty., Detroit, Mich., for appellee; Robert J. Grace, U. S. Atty., Detroit, Mich., on brief.

Before WEICK, Chief Judge, O'SULLIVAN, Circuit Judge, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

Robert Bradford Murphy and his wife, Elizabeth Irene Murphy, were arrested in Detroit and indicted on two counts for (1) transporting from Cincinnati to Detroit stolen documents of a value in excess of $5,000, belonging to the National Archives, knowing the documents had been stolen in violation of Title 18, U.S. C.A., Section 2314; and (2) possessing stolen documents of the United States, of a value in excess of $100, with intent to convert them to their use and gain, knowing such documents had been stolen in violation of Title 18 U.S.C.A., Section 641.

On the trial, the District Court dismissed the first count on the ground that transportation between Cincinnati and Detroit was not proved. The jury found the Murphys guilty on the second count of the indictment. They were each sentenced to a period of ten years, the institutions to be selected by the Attorney General. Robert Bradford Murphy was also sentenced to an additional period of six months for contempt, arising out of his conduct during the trial, the contempt sentence to run concurrently with the ten-year sentence.

Appellant Robert Bradford Murphy filed a motion to appeal in forma pauperis and for appointment, by the Court, of counsel; and he was permitted by this Court to appeal in such capacity. In a motion for appointment of counsel, his wife did not make the necessary showing of indigency, and such motion was denied. However, a brief was filed on this appeal by both Robert Bradford Murphy and Elizabeth Irene Murphy, and this Court has considered such brief as representing the contentions of both parties on appeal and has considered the rights of both parties as appellants in its determination. On the same day on which both of the appellants filed a brief, acting in propria persona, another brief was filed by court-appointed counsel for Robert Bradford Murphy; and this brief also has been considered by the Court in determining the appeals of both appellants. The contentions of appellants on appeal may be said to be embodied in three claims: (1) That they were denied their constitutional right to a fair trial by the conduct of the District Judge; (2) That they were denied their constitutional right by the refusal of the trial judge to permit the subpoenaing of certain defense witnesses and to permit access to evidence seized from appellants and withheld by the Government; and (3) That they were denied the effective assistance of legal counsel prior to, and during their trial. Other claims of error are without merit and do not warrant consideration.

The background of the case merits some discussion and from the record the following appears: In January 1964, the FBI office in Detroit had in hand fugitive warrants which were issued in Florida in June 1962 for the arrest of Robert Bradford Murphy and Elizabeth Irene Murphy.

On January 2, 1964, FBI Agent Croon, having had information that a woman answering Mrs. Murphy's description was selling documents to the Detroit Public Library, was making observations of persons at the library and, about noon of that day, saw a man who, he did not realize at the time, was Robert Bradford Murphy. Agent Croon stated he had only an obscure photograph of Murphy and that when he saw him, Murphy had a large mustache which apparently did not show in the photograph. However, later that same evening, at about 6:30, Croon and another FBI agent, Gerald W. Murphy, saw Murphy again outside a Kroger Company store but they were still unsure of his identity, although, apparently they suspected that he was the man they were looking for. It seems that they must have been relying, to a certain extent, on the dim photograph of appellant which they had, picturing him as "WANTED." Appellant, however, entered the grocery store, made some food purchases and then left. At that time he was put under surveillance by the two agents. Appellant headed south in an alley running parallel with the street on which the store was located. The agents also walked south in the alley and, at a certain point when appellant stopped, the agents casually engaged him in conversation, in the course of which they told him of their interest in historical documents.

Whatever may seem abrupt about the inquiry of the agents does not concern us, nor does the plausibility of their mention of the matter of such documents, as the testimony was unquestioned on that score. One would think that appellant would likely have been suspicious of the two agents but, apparently, he was not; and the detailed circumstances of their meeting and conversation were not recounted, nor impugned by the evidence of the appellant on the trial.

In any event, in reply to their expressed interest, appellant then told the agents that his wife was in the business of buying and selling historical documents, and offered to take them to his furnished apartment a short distance away. After appellant and Agents Croon and Murphy entered the apartment, Agent Croon saw Mrs. Murphy and immediately realized that she was the woman for whom they also had a warrant for arrest.

In a conversation that followed, Mrs. Murphy advised them that she had documents to sell, but that they were not immediately available to her, and that she would have to pick them up the next day in Canada, where she was going to secure ten cartons of historical documents.

While the agents were in the apartment they observed five children there. They arranged an appointment with the Murphys for the next day and, because of the children, left the apartment and used a nearby phone to make a call to the FBI office for aid in this matter. When Agent Croon returned from making the phone call, he saw appellant outside the apartment building with Agent Murphy, who stated that appellant had left the apartment but that he had stopped him and told him that he was a Special Agent of the FBI.

Appellant and the two agents then entered the apartment where they placed the two Murphys under arrest, telling them of the charges on which they were being arrested.

At the time of their arrest, the Murphys would not give their names to the agents. Afterward, other agents arrived from the FBI to make arrangements for the five children. Appellant Murphy was searched and in his wallet were found two Abraham Lincoln letters and a letter from James Monroe. There were also in his wallet two receipts indicating a shipment of ten cartons of goods to Chicago earlier on the same day, January 2, 1964. Six of the cartons, according to one of the receipts, were shipped to the Greyhound Bus Station in Chicago to be placed in the "Will Call" department where they were to be picked up later; four of the cartons went by Continental Trailway but to be put in the "Will Call" department. The receipts were not made out to the Murphys; one was addressed to "J. McBride," and the other, to "Laughton." On the trial, however, Mrs. Murphy testified without contradiction that the cartons were shipped to Chicago by the Murphys.

At the time of the arrest, appellant Murphy claimed to have a heart condition and told his wife he wanted some medicine, instructing her to get it for him. She went to the rear stairwell where there were six suitcases and a portable typewriter which, she stated, were owned by her and her husband. Mrs. Murphy then pointed to a briefcase and said the medicine was inside. Inasmuch as the agents had reason to believe the Murphys may have had a weapon on the premises, Agent Murphy opened the briefcase and pointed to the medicine which appellant's wife said was that for which she was looking. At the same time, the agent observed some historical documents in the briefcase.

From the suitcases were secured, among many other documents, 210 historical documents that were claimed, and found by the jury, to have been stolen from the National Archives in Washington, D. C. Although these documents were not separately catalogued, they were identified, as hereafter appears, as documents which had been in the National Archives in late August and early September 1962, during the same period of time in which appellant and his wife were spending many days in the Archives. Appellant had filled out an admission slip dated in August, stating that he was Robert B. N. Murphy of Thorne Street, Evanston, Illinois, and that he was a journalist for Universal Press in Chicago. He also stated on the admission slip that his purpose in the Archives was "To examine records of the Colonial and Revolutionary War Periods. To form a basis for work I've been commissioned to write on Famous Americans." There was no such publication press as "Universal Press" in Chicago or Evanston, or any "Thorne" Street in Evanston, so appellant's representations in this regard were completely false. Mrs. Murphy was in and out of the Archives during the period that appellant Murphy was there from August 24 to September 14, 1962. All of the 210 documents which were in the National Archives in August and September 1962, while the Murphys were there, were available to appellants during that time. How, then, did it happen that these documents were later found by the FBI in possession of appellant and his defendant wife?

While...