United States v. Skeeters

• Decision Date: 08 June 1954
• Docket Number: Cr. No. 23461-CD.
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. SKEETERS et al.

122 F. Supp. 52

UNITED STATES v. SKEETERS et al.

Cr. No. 23461-CD.

United States District Court, S. D. California, Central Division.

June 8, 1954.

Laughlin E. Waters, U. S. Atty., for the Southern Dist. of California, Louis Lee Abbott and Manuel L. Real, Asst. U. S. Attys., Los Angeles, Cal., for plaintiff.

Kenneth E. Cleaver, Los Angeles, Cal., for defendant Herbert Marcellus Hogan.

TOLIN, District Judge.

The defendants are charged with the illegal possession of gold. The matter is before the Court now on defendant Hogan's motion, pursuant to Rule 41 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., to suppress evidence and have returned to him a certain statement signed by him while in custody, upon the grounds that at the time the statement was given the defendant was being illegally detained and the circumstances of taking the statement amounted to coercion.

The power of this Court to grant the relief requested is not challenged, and in not challenging it the United States recognizes settled law. See Rule 41, Fed.Rules Crim.Proc.; McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829; In re Fried, 2 Cir., 161 F.2d 453, 1 A.L. R.2d 996; United States v. Hoffman, 2 Cir., 137 F.2d 416; United States v. Haupt, 7 Cir., 136 F.2d 661; Garner v. United States, 84 U.S.App.D.C. 361, 174 F.2d 499; Nueslein v. District of Columbia, 73 App.D.C. 85, 115 F.2d 690; United States v. Pollack, D.C.N.J., 64 F.Supp. 554.

The first question for determination is whether the defendant was being illegally detained, which is a question of fact for the Court. Rule 41, Fed.Rules Crim.Proc.; In re Fried, 2 Cir., 161 F.2d 453. The facts have been presented here only by affidavits of the defendant and the Secret Service Agent who obtained the statement.¹

Defendant states that he was arrested about 1:00 p. m. on Saturday, February 13, 1954, at Indio, California, by a United States Secret Service Agent, and that he was questioned on that date by the arresting Agent and other officers, including an Agent of the Federal Bureau of Investigation. He states that he was further questioned on the following Sunday, Monday, and on Tuesday morning. After this last questioning, defendant states that he was presented with a three-page, single spaced, type-written document and was informed by the Special Agent that it could not be used against him at any time. He states that on the basis of such an assurance, he signed the statement without reading it. Defendant further states that his home is in Oregon and that at the time of his arrest he was without sufficient funds or knowledge to employ local counsel, and that these facts were known to the arresting officers and that he was never advised before signing the statement that he could obtain counsel without cost. He states that after he signed the statement, he was taken to Riverside, California, 75 miles from Indio, where he was arraigned and first informed as to his right to counsel and of the incriminating effect which might attach to any subsequent statements. He concludes that he has, since obtaining counsel, seen the statement and considers it wholly inaccurate. He states that he is now seeking the exclusion and return of any statements, oral or written, made by him prior to his arraignment, upon the basis that any such statements were not voluntary and were obtained while he was being unreasonably detained by officers of the United States Government.

The affidavit of the Special Agent of the Secret Service is the only evidence offered in opposition to the motion. The Special Agent states that he did "interview" the defendant on Sunday, Monday, and Tuesday following the defendant's arrest. He alleges that he did inform the defendant that he had a right to counsel and that it was not necessary for him to make any statement, and that any statement he did make could be used against him. He states that present "at the time", that is, apparently at the time of the warning, were a Special Agent of the Federal Bureau of Investigation and the Indio Chief of Police. He further states that on Tuesday the defendant was shown "a statement covering the interviews" and that the statement was given to the defendant "with instructions to read the statement". The statement is not in question and answer form and obviously purports to be a narrative exposition of the events. The Special Agent states that the defendant initialed and signed the statement in the presence of two Indio police officers. The Special Agent further states that no threats of any kind were made "by anyone in the presence of the affiant", to induce the defendant to make any statement. He states that all statements of the defendant were made freely and voluntarily. The Special Agent finally states that the defendant "was not released to the custody of the affiant" until approximately 11:00 a. m. Tuesday and that he was arraigned in Riverside at approximately 4:00 p. m. that day. There is no suggestion of investigation of Hogan or prosecution of him by any state or municipal authority except as such local officers might have been active in investigation of the facts upon which prosecution is now being had only by Federal authority. Insofar as there might be criminality in those acts pleaded, it seems to be a situation redressable only under the laws of the United States. It is noteworthy that even if not released to the custody of the Special Agent until the late hour, defendant had been freely available to Government investigators for questioning, and the detention appears to have been for the purpose of this, and not a State prosecution.

Neither affidavit sets forth the facts surrounding defendant's arrest and detention as completely as might be desired. Many matters are left to implication. Some of the missing facts were suggested by counsel during argument, but, except where agreed upon, they cannot, of course, be considered as evidence.

Insofar as the Special Agent's affidavit goes, the Court accepts the factual statements therein as true. However, the language of the affidavit specifically leaves many suggested areas of inquiry unanswered including the important detail of whether or not this Special Agent or any other Federal Officer was present at the time of the arrest, and particularly whether or not any other Federal agent questioned the defendant at any time. The affidavit does not specifically refute the allegation by defendant that he was arrested by this Special Agent and questioned by him on Saturday. The Special Agent does allege that the defendant "was not released to (his) custody" until Tuesday, which does seem to indicate, but does not directly aver, that he did not have any previous official custody. Whatever those facts were, the Special Agent obviously had free access to, and some degree of supervision and control over, the defendant for at least two days previous to the time he alleges he obtained "official custody" of the defendant. The nature and extent of this control is not explained. There is no allegation, or even intimation, that the Government could not have obtained custody at any time following the defendant's arrest nor is there any reason given why the arraignment was not had before the United States Commissioner prior to Tuesday.

The Court does not mean to be overly technical in its reading and analysis of the Special Agent's affidavit, but it cannot escape the impression that the language is couched very particularly so as to avoid many important factual areas. For instance, in the face of defendant's contention that he did not read the statement, the Special Agent does not state that the defendant read, or appeared to read, the statement, but rather states that "* * * the statement was given to him with instructions to read the statement". Other language seems to clearly indicate that the statement was not prepared by the defendant. The statement itself is couched in investigator's language and it is unlikely in the extreme that it is the unedited statement of its signatory. The affidavit also very deliberately restricts the negation of threats or promises of immunity to any such statements made "in the presence of the affiant". This language suggests the possibility of such acts outside his presence. The affidavit of the defendant also specifically states that he was not informed of his right to counsel without cost to him. The Special Agent's answering affidavit merely states that the defendant was informed that he "had the right to counsel". These particular discrepancies are pointed out only to indicate that the Agent's affidavit does not directly answer or reply to the specific charges of the defendant. None of the above specified factual omissions are supplied on information or belief nor by the affidavits of the other officers involved. This information would be peculiarly available to the prosecution. At the time of oral argument, the Court specifically asked if the Special Agent of the Secret Service was present, and was informed that he was. However, the prosecution made no offer to place him under oath for examination.² The Court cannot escape the conclusion that the entire matter of meeting defendant's charges concerning the circumstances surrounding the taking of the statement has been carefully avoided in many of its important aspects.

The affidavit of the defendant does specifically state that he was arrested by the deposing Special Agent and that this Special Agent informed him that the written statement could not be used against him. In these matters the Court finds against the defendant. However, it does seem reasonable to assume that the defendant might have confused the presence of the Special Agent with the formal act of the arrest; or have confused his presence at or near the time that any representations of immunity were made with his actually making such representations. Agai...