United States v. Thomas
| Decision Date | 23 March 1973 |
| Docket Number | No. 72-1663.,72-1663. |
| Citation | 475 F.2d 115 |
| Parties | UNITED STATES of America, Appellee, v. Gary Lamont THOMAS, Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Thomas W. Brooks, Overland Park, Kan. (Jon S. Willard, Overland Park, Kan., with him on the brief), for appellant.
Edward H. Funston, Asst. U. S. Atty., Topeka, Kan. (Robert J. Roth, U. S. Atty., and Glen S. Kelly, Asst. U. S. Atty., with him on the brief), for appellee.
Before HILL and DOYLE, Circuit Judges, and BRATTON, District Judge.
The appellant was convicted upon an indictment charging him with armed robbery of a bank in violation of 18 U. S.C.A. § 2113(a), (d) and 18 U.S.C.A. § 2.
On this appeal, he first argues that the receipt into evidence of a conversation had between the appellant and a Deputy United States Marshal, while he had appointed counsel and in the absence of such counsel, was reversible error.
This issue arose as a result of the transportation of Thomas by two Deputy Marshals from the United States Magistrate's court in Belleville, Illinois, to the St. Clair County Jail in that city, following a removal hearing on the charge of which he now stands convicted. The Marshals had previously arrested Thomas on the charge here involved and had brought him to the jail from an Illinois penal farm. After the removal hearing, and while the appellant was being taken back to jail, he said he couldn't understand how he could be tried for the bank robbery case, since the charge had earlier been dismissed, unless one of his partners on the job was going to testify against him.
Appellant had been advised of his rights when he was picked up at the jail to go to the Magistrate's office and again at the removal hearing. A lawyer was appointed to represent him at the removal hearing.
During the course of the trip back to jail, neither Marshal asked appellant any question, and, indeed, one of the Marshals said nothing at all. The other Marshal's only comment was his response, "I don't know," to appellant's question concerning the ability of the United States Attorney to prosecute him for the offense when the charge had previously been dismissed.
The court below held a full hearing on the issue and correctly found that appellant had freely and voluntarily made the statements with full knowledge of his Miranda rights and without any interrogation by the officers. Hence, there is lacking any deliberateness on the part of the federal officers, and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1963), is not applicable.
The set of circumstances here presented does not raise the issue decided in United States v. Thomas, 474 F.2d 110 (10th Cir. 1973). What transpired on the return trip to jail cannot be characterized as an in-custody interview of appellant conducted by agents of the prosecuting party in the absence of and without the knowledge of his counsel. Hence, the ethical question raised in Thomas is not present in this appeal.
Appellant next argues that the Government should have made...
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