Williams v. United States, No. 18928.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: PER CURIAM
• Citation: 345 F.2d 733,120 US App. DC 244
• Parties: Anthony WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 18928.
• Decision Date: 18 March 1965

120 US App. DC 244, 345 F.2d 733 (1965)

Anthony WILLIAMS, Appellant,
v.
UNITED STATES of America, Appellee.

No. 18928.

United States Court of Appeals District of Columbia Circuit.

Argued February 5, 1965.

Decided March 18, 1965.

Petition for Rehearing and Petition for Rehearing Denied May 17, 1965.

Mr. Bruce E. Clubb (appointed by this court), Washington, D. C., with whom

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Mr. Sheldon I. Cohen, Washington, D. C., was on the brief, for appellant

Mr. John R. Kramer, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and John A. Terry, Asst. U. S. Attys., were on the brief, for appellee.

Before FAHY, DANAHER and BURGER, Circuit Judges.

Petition for Rehearing En Banc and Petition for Rehearing before the Division Denied May 17, 1965.

PER CURIAM:

The appeal is from the conviction of appellant of robbery, defined in 22 D.C. Code § 2901 and of assault with a dangerous weapon in violation of 22 D.C. Code § 502. At the trial defendant was identified by three witnesses as the person who committed the robbery and assault. His counsel appointed by this court, however, strongly contends on the appeal that the trial court was without jurisdiction to enter judgments of conviction because the defendant was denied his constitutional right to the assistance of counsel granted by the Sixth Amendment to the Constitution. The evidence admitted at the trial and associated with his contention was to the effect that the identifying witnesses had previously identified defendant in a police lineup held shortly after the commission of the crimes and when appellant, the accused, was without counsel.

The case does not resemble factually any recent decision of the Supreme Court in which a conviction has been held invalid due to denial of the Sixth Amendment right to counsel, although the lack of such assistance prior to trial has been held fatal to convictions in a variety of circumstances. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). It is our understanding from these decisions that such result depends upon the circumstances of the particular case. In the present case, especially in view of the fact that the evidence referred to consisted only of identification in a police lineup prior to indictment, the deprivation claimed cannot be held to have occurred.

Affirmed.

BURGER, Circuit Judge (concurring):

Appellant Williams makes contentions which I believe deserve some comment if for no other reason than their novelty. Williams' argument is that because he had no counsel present at the line-up,¹ Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L.Ed.2d 977 (1964), requires exclusion of trial testimony by three witnesses that they had identified him in a police line-up. In effect it is argued that

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a police line-up must be a joint enterprise staged by the cooperative efforts of the police and defense counsel. I believe the argument lacking in merit in the face of the precision used by the Supreme Court to limit its holding

"We hold * * * that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied the `Assistance of Counsel\' in violation of the Sixth Amendment to the Constitution * * * and that no statement elicited by the police during the interrogation may be used against him at a criminal trial."

378 U.S. at 490-491, 84 S.Ct. at 1765 (Emphasis added.) I read the Escobedo holding as setting up an exclusionary rule² which can be expected to function much as the Mallory Rule does for Rule 5(a) situations but primarily for the state courts. Its concern is to exclude the incriminating statements of a defendant whose situation meets the carefully articulated tests set out above: his own uncounseled incriminating words may not be used against him at trial if they were elicited by purposeful police interrogation without prior warning of his right to silence and right to counsel. In the federal courts Escobedo and Mallory apparently overlap, with the former case (along with Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964)) supplying a possible independent basis for exclusion only of evidence derived from police conduct after a preliminary hearing, to which Mallory has no application.

Whatever the circumstances of an Escobedo objection, however, it seems to me we must look to Mallory cases for guidance. The scope of Escobedo may

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well be narrower than that of Mallory;³ it is certainly no broader. Our post-Mallory cases, confusing and conflicting though they are, make clear that the police...