United States v. Reagan, 71-1262.

• Decision Date: 09 December 1971
• Docket Number: No. 71-1262.,71-1262.
• Citation: 453 F.2d 165
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Howard D. REAGAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

453 F.2d 165 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Howard D. REAGAN, Defendant-Appellant.

No. 71-1262.

United States Court of Appeals, Sixth Circuit.

December 9, 1971.

James J. Carroll (Court appointed), Cleveland, Ohio and William E. Fuller, New York City, for defendant-appellant.

Robert W. Jones, Asst. U. S. Atty., Cleveland, Ohio (Frederick M. Coleman, U. S. Atty., Edward F. Marek, Asst. U. S. Atty., Cleveland, Ohio, on the brief), for plaintiff-appellee.

Before EDWARDS, McCREE, and MILLER, Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

This is an appeal from a conviction for voluntary manslaughter. 18 U.S.C. Sec. 1111 provides that murder in the first degree is the unlawful killing of a human being with malice aforethought or if committed in perpetration of any robbery or burglary within "the special maritime * * * jurisdiction of the United States."

18 U.S.C. Sec. 7 specifically defines the special maritime jurisdiction of the United States as follows:

The term "special maritime and territorial jurisdiction of the United States," as used in this title, includes:

(1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.

The appellant was charged with three counts under 18 U.S.C. Sec. 1111: first, with intentional and premeditated murder of Joseph Speidell, a fellow seaman; second, with murder in perpetration of a robbery; and third, with murder in perpetration of burglary. After a five week trial beginning in October 1970, the district court dismissed the third count of the indictment and submitted the case to the jury on the first two counts, also charging the jury that it could consider whether the appellant was guilty of the lesser included offense of voluntary manslaughter made a federal offense by 18 U.S.C. Sec. 1112 if committed within the special maritime jurisdiction of the United States. The jury found the appellant guilty of the lesser included offense of voluntary manslaughter and not guilty of all other charges. Following denial of his motion for a new trial appellant perfected his appeal to this Court.

The events out of which the charges against appellant arose occurred on an American vessel, the SS Thunderbird, in the harbor of Bremerhaven, Germany, close to the noon hour on December 16, 1966. The harbor is located on the east bank of the Weser River which flows north past Bremen and Bremerhaven into the North Sea. Bremerhaven is approximately sixty kilometers inland from the boundary which separates German inland waters and the international waters of the North Sea. As a result of extreme tides, the harbor is separated from the Weser River by locks. These are opened to permit vessels to enter and depart the harbor only at certain stages of the tide.

Much evidence was offered in this prolonged trial and many versions of the events leading up to and immediately following the slaying were presented to the jury. No effort need be made here to recount or even to summarize the entire testimony.

The nature of the relationship between the appellant and the victim is by no means clear either generally or on the morning of the slaying. There is evidence that Reagan and another were in Speidell's (the victim's) room prior to the assault for a drink of whiskey. It is suggested that Speidell made a homosexual advance toward Reagan at this time. In addition there is testimony that the two had a "mild argument" outside Speidell's cabin. There is also testimony, however, that soon thereafter, Reagan loudly proclaimed the injustice of Speidell's being unable to go ashore because of work. Reagan had been drinking in the morning and the appellant asserts that this drinking was sufficiently substantial to cause him to be unable to remember what transpired at approximately the time of the slaying.

In any event, the evidence shows that at aproximately noon, Speidell appeared on the bridge with his throat cut and bleeding. At this point, he could speak, but he did not identify his assailant. The details of the assault were not ascertained.

At about the same time, in a bloody and frenzied state, the appellant was seen entering and leaving the cabin next to Speidell's. After he left the cabin his new hunting knife was found there and turned over to the Master. Subsequent examination of the knife disclosed that it bore no traces of blood or tissue. Reagan next appeared in the ship's galley, still in a frenzied state, where he was confronted by Sidney Howard who attempted to restrain him. In doing this Howard struck Reagan with some type of object. Reagan broke free from Howard and fled staggering aft along the port side passageway and across the ship to the starboard passage where he met the Chief Mate. He fell at the feet of the mate and uttered the plea: "Chief Mate, Chief Mate, help me, help me." The Captain appeared armed with a pistol and directed the Chief Mate to handcuff Reagan and directed that he be watched. The appellant broke away once more. He was again restrained and this time taken ashore and tied to a box-car.

During this period Reagan made many wild and irrational statements, some in response to questions relating to the knifing of Speidell and others not. A number of these statements suggested strongly that Reagan had indeed wielded the knife against Speidell. The following examination of chief enginer John Jedilinic is representative:

Q. What did you do?

A. I stopped him.

Q. What do you mean you stopped him?

A. I stopped him. I said, "You can\'t go up there."

Q. All right. Did you say something else?

A. Yes sir. I told him, I said, "You did enough damage and Speidell died."

Q. Did he reply to that?

A. Yes sir, he did.

Q. What did he say?

A. He said, "I did it. I hope he dies. I want to finish him."

Q. And those were Mr. Reagan\'s words?

A. Yes, that was Mr. Reagan\'s words.

There was also testimony that Reagan said to the Captain, "They tried to kill me."

The German authorities were called and Reagan was taken into custody. On December 17, 1966, the day after the slaying, he was judicially committed to a State mental institution in Bremen. The SS Thunderbird departed Bremerhaven about 1:00 p. m. on this date. Reagan remained in the German institution till after the ship returned to Bremerhaven about April 1, 1967. On April 5, 1967 a Judge of the appropriate German County Court refused to issue a Warrant of Arrest for the crime of murder sought by the German Prosecutor, finding no probable cause for an arrest.

After his release in Bremen, Reagan returned to the Kennedy Airport where, though no charges were pending against him, he was met by agents of the Coast Guard and F.B.I. and told to return to his home in Cleveland and not to sail on foreign voyages. Thereafter, the U.S. Coast Guard in Bremen, acting for the F.B.I., requested the appropriate German authorities to release to them the records pertaining to the Reagan matter. This request was denied on the ground that under German law such records may not be released without the consent of the accused, a consent which Reagan refused to give. On November 3, 1967 Judge James C. Connell of the United States District Court for the Northern District of Ohio, Eastern Division, requested from the "appropriate judicial authorities in Land Bremen, Federal Republic of Germany" the records sought by the F.B.I. and the Coast Guard. The request in the form but not in the words of a "letter rogatory" is set forth below.¹ Pursuant to this request, the German file was sent to the district court and made available to the office of the U. S. Attorney in early 1968.

On September 12, 1969 a grand jury indictment was returned. On September 15, 1969 it was opened, docketed and a warrant for the appellant's arrest was issued. He was then taken into custody. The trial and appellant's conviction followed. From this conviction appellant perfected his appeal.

Appellant makes numerous contentions. He asserts: the district court was without subject matter jurisdiction; the indictment was deficient in that it failed to allege an essential element of jurisdiction; the delay in prosecuting him constituted a denial of his due process rights under Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); the request for international judicial assistance was without the jurisdiction of the district court at the time issued and constituted an abuse of discretion; the failure of the district court to suppress evidence which was the fruit of the request was reversible error; the admission of the testimony of a German police official who was brought to this country by the government was reversible error in light of the court's failure to provide for the bringing of defense witnesses to this country from Germany; he was placed in double jeopardy because of the German proceeding; the failure to declare a mistrial upon his emotional outburst at trial constituted a reversible error; and finally appellant says that the evidence was insufficient to support a conviction for voluntary manslaughter. We have carefully considered each of these contentions on the basis of the record and pertinent authorities. We find it necessary to discuss only the issues concerning jurisdiction and the issuance of a letter rogatory.

JURISDICTION

The appellant contends at the outset that the district court was without subject matter jurisdiction. He asserts:

The District Court below consistently erred as a matter of law in applying the "concurrent jurisdiction" theory of the law of the flag and the

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