Wion v. United States

• Decision Date: 12 December 1963
• Docket Number: No. 7199.,7199.
• Citation: 325 F.2d 420
• Parties: David W. WION, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

325 F.2d 420 (1963)

David W. WION, Appellant, v. UNITED STATES of America, Appellee.

No. 7199.

United States Court of Appeals Tenth Circuit.

December 12, 1963.

Lawrence G. Empey, Denver, Colo., for appellant.

Lawrence M. Henry, U. S. Atty. (Robert S. Erdahl, Attorney for Department of Justice, on brief), for appellee.

Fred Cohen, Denver (Walter L. Gerash, Denver, Colo., on brief), for Colorado Psychological Ass'n, amicus curiæ.

Before MURRAH, Chief Judge, and PICKETT, LEWIS, BREITENSTEIN, HILL and SETH, Circuit Judges, en banc.

MURRAH, Chief Judge.

This is an appeal from a conviction and sentence on an indictment which charged that appellant Wion, did "knowingly cause to be delivered by mail to Mildred Tandy at Eckert, * * * Colorado, * * * an explosive, with intent to kill or injure her," in violation of 18 U.S.C. § 1716. The appellant does not seem to deny the sufficiency of the record evidence to support the verdict of guilty. He does contend that the trial Court erroneously denied his motion to suppress incriminating evidence, on the ground that it was obtained pursuant to a search and seizure without a warrant and without his requisite consent. And, on the further ground that the Court erroneously denied his motion to provide appointed counsel with funds necessary for the proper preparation of his defense. Finally, the appellant renews his challenge to the instructions of the Court, concerning his mental capacity to commit the crime charged.

On the pre-trial motion to suppress, the established and basic facts are to the effect that on the 17th day of January, 1962, Mildred Tandy received a package, delivered to her by mail at Eckert, Colorado from Sacramento, California. While she was opening the package, it exploded causing bodily injury to her. The indictment was returned in the District of Colorado on January 23, 1962, and the postal inspectors in Denver, Colorado notified the postal inspectors in Sacramento, informing them that the warrant had been issued and was being mailed to Sacramento. Upon receipt of this information and before receipt of the warrant, four postal inspectors went to an apartment occupied by Wion and his twenty-year-old son in Sacramento. They arrested Wion and immediately searched without a warrant, his apartment and an automobile belonging to his son, located on the streets near-by. They seized four pair of "electrical pliers" in the apartment, three of which belonged to the son, and one pair apparently belonged to the father. They took some other tools from a box in the trunk of the automobile, including a fifth pair of pliers belonging to Wion, all of which was introduced in evidence over Wion's objection.

There was evidence to the effect that on the 20th day of January, before the indictment was returned on January 23rd, two postal inspectors went to the apartment occupied by Wion and his son in Sacramento. They talked to Wion about Mrs. Tandy, and asked him some questions, but no search of any kind was made. When, after the indictment, they returned to the apartment on January 23rd, two of the inspectors were first admitted by Wion in the presence of his son, and upon signal, the other two inspectors followed.

Wion testified that he told the inspectors they could not search the apartment without a warrant, but that they unbuttoned their coats, put their hands on their guns, and told him that they had a right to search the apartment without a warrant and proceeded to do so. The son testified that he rented the apartment and it was occupied by him and his father, and that the inspectors were first told they could not search without a warrant, but that after some conversation, he finally gave permission for the search of the apartment and offered to allow the inspectors to search his automobile, which they did with his cooperation, He denied that he was "intimidated" or "frightened."

The officers testified that upon entering the apartment, they told Wion of the indictment in Colorado; that he was being placed under arrest on that charge; that in due course, he would be taken before the United States Commissioner in Sacramento; and, that when Wion protested his arrest or search without a warrant, he was told that the arrest was quite proper, and that they proposed to search his immediate effects, whereupon Wion and his son both consented and cooperated completely and fully in the conduct of the search of the small apartment. The officers denied that their firearms were exhibited in any manner, or that Wion was coerced in any way.

The trial Court observed that while the evidence indicated that Wion consented to the search and seizure, it was sustained as having been "made contemporaneously with and incidental to the lawful arrest, and the materials taken were not entirely without relation to the charge."

Wion occupied the premises searched. The search was directed to him, and he had standing to challenge the legality of the search by motion to suppress the articles seized. See: Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; and Villano v. United States (10 CA), 310 F.2d 680. Cf. Williams v. United States (Meier v. United States) (10 CA), 323 F.2d 90. Following Jones, we left no doubt in Villano that this Court would view with caution and misgivings any search based upon a consent given after arrest, and under circumstances indicating intimidation or coercion of any kind. The consent must be freely given, and we will indulge in "every reasonable presumption against waiver." United States v. Page, 9 Cir., 302 F.2d 81, 84. But, we agree with the trial Court that the search of the apartment was made as an incident to the lawful arrest of Wion. He had been indicted for a felonious crime, and a warrant had been issued. The postal inspectors had reasonable cause to believe that Wion had committed the offense. There was probable cause for the arrest, and if the search was not consented to, it was conducted without intimidation or coercion, and was reasonably incident to the arrest.

The appellant suggests that postal inspectors have no authority to make an arrest, i. e., see: United States v. Helbock, D.C., 76 F.Supp. 985; and United States v. Hass, D.C., 109 F.Supp. 443; and, that the search could not, therefore, have been incident to a lawful arrest. But, even a private person is authorized to make an arrest in California, under circumstances like these. See: California Penal Code, Sec. 837(3).¹ We think the search of the apartment was reasonably incident to a lawful arrest, and it is plain beyond doubt that the automobile, belonging to the son, was searched with his consent freely and voluntarily given.

On the question whether the failure to provide defense counsel with funds with which to make investigations in California was prejudicial to the rights of Wion, to a fair and impartial trial, the record shows that all of the exhibits, and for that matter, all of the demonstrative evidence introduced against the defendant, were made available by the Government before trial, for inspection by counsel for the defendant, under F.R. Crim.P., Rule 16. When the question arose concerning the relevancy of a certain quantity of dynamite and detonators in California, arrangements were made for defendant to designate some person to inspect it on his behalf, and counsel was advised that if, after inspection, he believed that there was a matter at issue, as to which expert testimony would be relevant, application could be made to the Court for the production of that testimony, under the Rule. With respect to payment of counsel's expenses to California, the Court observed that, in the first place, there were no funds available for the payment of expenses, and called attention to Mr. Wion's statement that he had $300 in cash and was the payee on two notes, on which monthly payments were being made. Counsel for the defendant then stated that he would make further investigation, to determine if the defendant had funds readily available to pay the necessary expenses. The Court concluded the conference by stating that he would be available for "any conferences or hearings that may be necessary, in order that you may be prepared in this case, so far as it is possible, for the trial date on June 19," and that counsel "may feel free to call upon me at any time, if there are any matters that need further Order." There was no further application to the Court for orders in aid of investigation in California, and the Court was not asked to make any further orders for production of any evidence deemed relevant to the defense of the charge against Wion.

The record of the trial proceedings indicates beyond question that the accused was effectively represented by able counsel, at every step of the proceedings against him, and that the trial Court maintained a solicitous regard for the rights of the defendant throughout the trial of the case.

The mental competency of the defendant to commit the offense charged was put in issue. And, the trial Court instructed the jury with commendable clarity, that the mental competency of the accused to commit the offense was an essential element of the crime charged, and like all other essential elements, must be proved by the Government beyond a reasonable doubt; that before convicting the accused, the jury must be satisfied beyond a reasonable doubt not only that the accused did the acts charged, which constitute the crime, but that they were done by a person mentally capable of committing the offense; and, that if they had a reasonable doubt of the defendant's mental competency at the time of the offense, he must be acquitted. The Court then proceeded to define mental incompetency in terms of criminal responsibility verbatim, in accordance with a recent decision of this Court, as meaning, "* * * such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and...