United States v. Thompson, 16982.

• Decision Date: 29 June 1967
• Docket Number: No. 16982.,16982.
• Citation: 379 F.2d 625
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert THOMPSON, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

379 F.2d 625 (1967)

UNITED STATES of America, Plaintiff-Appellee, v. Robert THOMPSON, Jr., Defendant-Appellant.

No. 16982.

United States Court of Appeals Sixth Circuit.

June 29, 1967.

Otto F. Putnick, Cincinnati, Ohio (Court Appointed), for appellant.

Ernest W. Rivers, U. S. Atty., Louisville, Ky., for appellee.

Before PHILLIPS, and PECK, Circuit Judges, and McRAE, District Judge.^*

PECK, Circuit Judge.

Defendant-appellant was indicted for perjury under 18 U.S.C. § 1621. The District Court entered judgment of conviction against appellant pursuant to jury verdict, and following the denial of appellant's motion for a new trial this appeal was perfected.

In 1960 appellant was convicted of robbery of a federal savings and loan association for which he is presently serving a fifteen year sentence. Subsequent to this conviction appellant has filed several motions to vacate pursuant to section 2255 of Title 28 U.S.C. While a case involving one of said motions was on appeal, appellant submitted an affidavit to this court which in part alleged that appellant, at the time he was confined in the Louisville, Kentucky, city jail as a robbery suspect, requested the Chief of Detectives, Major Priest Fry, to call appellant's retained counsel but that Major Fry did not call the attorney as he promised to do. On the basis of this affidavit, which, the government notes, was filed less than one month after the Supreme Court decided Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.2d.2d 977 (1964), we remanded the case to the District Court for the purpose of conducting a hearing on the allegations. (Case No. 15890, Feb. 19, 1965). It was at this hearing that appellant allegedly perjured himself.

At that hearing appellant's version of the events subsequent to his arrest in 1960 was as follows. He was arrested at approximately 4:00 p.m. on January 28, and was then booked, fingerprinted and put through a series of police lineups. At approximately 8:00 p.m., appellant was arraigned at Night Police Court, at which time he asked his wife who was with him to contact an attorney. The next day, January 29, appellant was interrogated by several city detectives with respect to various robberies which had been committed in the area. He was taken to Major Fry's office around lunch time where he was again questioned, this time about several unsolved bank robberies. After lunch, which appellant had with Major Fry in his office, the Major stated that since appellant refused to make a statement he was going to call the F.B.I. At this point appellant made the following statement which count one of the perjury indictment charges is false: "And at that time I asked him would he call my lawyer. * * *" After being returned to his jail cell for a time, appellant was again escorted to Major Fry's office where he was confronted with five or six detectives and two special agents from the F.B.I. At this interview appellant asked the police sergeant who was present to let him speak to Major Fry regarding the Major's earlier promise to call appellant's attorney.

Following the testimony of the appellant just summarized, he was asked:

"Q. (Interrupting) Now, you say that Major Fry promised to call your lawyer?"

The second count of the two-count perjury indictment charges that appellant's reply to this question, "He did; yes, sir." was false. In accordance with his earlier testimony as above outlined, appellant explicitly stated at the hearing that his request to Major Fry occurred before the special agents arrived.

The government called three witnesses at the perjury trial, Major Fry and the two F.B.I. agents. Major Fry stated at trial that he saw appellant on January 28, 1960, when the other police officers were getting him ready for the lineup, and although he spoke with appellant, he could not recall what he said at that time. The Major also testified that he had been to a staff meeting until approximately 10:00 or 10:30 a.m. on January 29, and that he saw the accused for the first time that day shortly after leaving that meeting. According to this witness, appellant was then in the company of two F.B.I. agents, in a room adjacent to his office. Major Fry further testified that he had no conference with appellant prior to the time he saw appellant with the federal agents; that appellant did not in the presence of the special agents request him to call an attorney; that he had no conversation with appellant after 10:00 a.m. on January 29, "other than to speak with him"; that he did not notify the F.B.I. that appellant was in custody and available for questioning; that he did not have lunch with appellant in the office in which appellant was being questioned; and that "at no time did Robert Thompson on January the 28th or on January the 29th ever ask me to call his lawyer, his wife, or anyone, at no time."

Major Fry's testimony as to the events of January 29, 1960, is consistent with that of the F.B.I. agents who interviewed appellant to the extent that both agents stated that they arrived at police headquarters sometime between 10:00 and...