United States v. White, 73-1642.

• Decision Date: 16 May 1974
• Docket Number: No. 73-1642.,73-1642.
• Citation: 493 F.2d 3
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Randall Gene WHITE and James Randall Kircher, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

493 F.2d 3 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Randall Gene WHITE and James Randall Kircher, Defendants-Appellants.

No. 73-1642.

United States Court of Appeals, Fifth Circuit.

April 24, 1974.

Rehearing Denied May 16, 1974.

Stanley M. Newmark, Miami, Fla., (court-appointed), for White.

Robert C. Stone, Hollywood, Fla., for Kircher.

Andrew I. Friedrich, Stanley L. Seligman, Hollywood, Fla., Basil E. Dalack, Miami, Fla. (court-appointed co-counsel), for Kircher.

Robert W. Rust, U. S. Atty., Carol M. Anderson, Asst. U. S. Atty., Miami, Fla., Mervyn Hamburg, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before BROWN, Chief Judge, and AINSWORTH and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge.

Defendants-appellants White and Kircher were arrested on September 20, 1972, and later indicted for possession of heroin with intent to distribute and distribution of heroin, in violation of 21 U.S.C. § 841(a)(1). Both were convicted in separate jury trials in the Southern District of Florida. White was sentenced to concurrent terms of imprisonment for 18 months with a special parole term of three years, and Kircher was sentenced to imprisonment for two years with a special parole term of three years. Finding the evidence introduced at Kircher's trial insufficient to support the jury verdict, we reverse his judgment of conviction. We find no error in the conviction of White.

I. WHITE

The only witness of any significance to testify at White's trial was Richard Walde, special agent of the Federal Bureau of Narcotics and Dangerous Drugs, assigned to the Drug Abuse Law Enforcement unit (DALE) in Miami, Florida. Walde testified that on September 19, 1972, he met with Mike Hennan, a confidential informant, at a Royal Castle restaurant. He and Hennan then went to a house at 1171 S.W. 31st Avenue in Miami, where they met with defendant White and negotiated a purchase of some heroin.

The three men drove to a 7-Eleven grocery store in Lauderhill, where White left Hennan and Walde, saying he would have to meet his source alone. He returned a few minutes later to report that his source was not at home. They drove back to the S.W. 31st Avenue address, where the two split up, with the understanding that they would meet again at four that afternoon. At the second meeting, White told Walde that he could not sell Walde any heroin unless Walde "shot up" (injected heroin into himself) in front of him. Walde refused, and the deal fell through.

The next day Hennan called Walde, and as a result of their conversation the two men met at the same Royal Castle restaurant at 11:30 a.m. Walde searched Hennan and determined that he had no drugs or money in his possession. He then gave Hennan five "marked" $20 bills and a government car which had also been searched. Hennan drove off in the government car, with Walde following in another car. Hennan drove to the house on S.W. 31st Avenue, where he picked up White and another man named Kettner. Hennan, White and Kettner then drove to the 7-Eleven store, with Walde following at a distance. Hennan and Kettner left the car, and White drove off. Walde did not follow White, but saw him return some time later. Walde watched Kettner and Hennan re-enter the car and return to 1171 S.W. 31st. At that point, Kettner and White left the car, and Walde followed Hennan back to the Royal Castle. Walde testified that at the Royal Castle,

Hennan got into my car and he produced a bag which he stated was heroin, a hundred-dollar piece, a hundred dollars worth of heroin, which he stated he had gotten from the defendant White.

Finally, Walde testified that after taking White to the police station and receiving a written waiver of White's so-called Miranda rights, he obtained a written confession to the effect that after leaving Hennan and Kettner, White went to Kircher's house at 4921 N.W. 13th Street, Lauderhill, and purchased $100 worth of heroin from Kircher with five $20 bills, later giving the heroin to Hennan.

White's first argument on appeal is that the district judge erroneously allowed the confession into evidence because in spite of the written waiver of rights, any confession obtained while a suspect is in custody is inherently coerced. Counsel for White acknowledges that this position is an extension of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but argues that his position is a logical and necessary extension of Miranda. We do not agree that the argument is a necessary extension of Miranda. The entire Miranda opinion was based on the assumption that not all in-custody interrogation is coerced, and we are unable to hold to the contrary here. The Court in Miranda held specifically that an in-custody interrogation following a knowing, intelligent and voluntary waiver of rights by the accused is admissible as evidence in a criminal prosecution. We follow that holding in this case.

Next, White argues that the confession does not meet the requirements of Miranda itself because the waiver of rights was coerced. Not only was the evidence presented at the hearing on the motion to suppress sufficient to support the district judge's denial of the motion, the evidence almost required it. There was no indication that any threats were made against White, or that he was tricked into signing the confession. The only contrary indication was a single statement by the agents that it would be "helpful" to sign the confession. In an otherwise non-coercive atmosphere, such an isolated statement standing alone is insufficient to invalidate an otherwise legal confession.

White's third argument is that the district court erred in allowing the confession to be introduced into evidence without sufficient corroboration. Counsel for White argues that before a confession is introduced into evidence, or at least at some point in the government's case, it is necessary to introduce evidence independent of the confession establishing a corpus delicti. That is, the government must prove, without the use of the confession, the existence of a crime, and may use the confession only to connect the defendant with the crime. Since the only testimony regarding the heroin was that it passed from one government agent to another, the argument concludes, no corpus delicti was proved. This argument has two flaws. First, as the testimony quoted above indicates, Walde was allowed to testify without objection that Hennan told him that he (Hennan) obtained the heroin from White. This testimony was obviously hearsay. Nevertheless, counsel who at other points in the trial repeatedly, promptly and correctly made objections to testimony and argument, clearly waived his client's right to exclude this evidence by not objecting to the testimony.

But there is also another reason why we cannot accept this argument, and that is that independent evidence of a corpus delicti was not needed. It is true that in some jurisdictions, the prosecution must present substantial independent evidence of every element of the corpus delicti in order to provide sufficient corroboration of an extrajudicial confession. See, e. g., Robinson v. State, 71 Okl.Cr. 75, 108 P.2d 196 (1940), Commonwealth v. Puglise, 276 Pa. 235, 120 A. 401 (1923).

However, the federal courts follow the majority rule, cf., Anno., 45 A.L.R.2d 1316 (1956), that "The corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti." Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101 (1954). See also, Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954); United States v. Khandjian, 489 F.2d 133 (5th Cir. 1974). As this court recently held,

The requirement is only that there be extrinsic evidence corroborating the confession as a whole, which, taken together with the confession, is sufficient to support a finding of guilt beyond a reasonable doubt. Smith v. United States,

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