Petition — Sioux City & New Orleans Barge Lines, Inc. v. Helena Marine Service, Inc.

ee)

\

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

88-1006

FRANKLIN NEIL JACEK,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LAW OFFICES OF HARLAN STREET, P.A.

12700 Biscayne Boulevard

North Miami, Florida 33181

Attorneys for Petitioner

TABLE OF CONTENTS

Opinions Below

Jurisdiction

Questions Presented

Constitutional Provisions

I - Nature of the Case

II - Persons Involved

III - The Case

Status of Litigation

Reasons for Granting the Writ

Conclusion

Appendix

CITATIONS

Williamson

vs.

United States,

332 F.2d 123

(C.A. 5 1964)

OTHER AUTHORITIES

1. Title 18 U.S.C. § S501,2

2. Title 28 U.S.C. § 2101

3. Title 28 U.S.C. Supreme Court

Rules, Rule 19 (b)

4. U.S.C.A. Const. Amend 5

5. U.S.C.A. Consi. Amend. 6

6. Title 18 U.S.C. § 4208 (a) (2)

Ne — =

CAP ONO WN

16

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

NO.

FRANKLIN NEIL JACEK,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner prays that a Writ of Certiorari issue to

review a part of the Judgment and Decision of the United

States Court of Appeals, for the Sixth Circuit, entered on

October 21, 1977 which affirmed the conviction of your

Petitioner for aiding and abetting in the counterfeiting of

50 cent postage stamps in violation of 18 U.S.C. § 501 and 2.

Petitioner claims as fundamental error and clearly erron-

eous that portion of the Order and Judgment of the Sixth

Circuit Court of Appeals which found without merit and

rejected Petitioner's argument that the inconsistant statements

of the accomplice witness, Donald Howie, which were obvious

from the record, and which constituted the only evidence

directly linking your Petitioner to the forging and counter-

feiting of 50 cent postage stamps, made it encumbent on the

trial court to give specific cautionary instruction on the testi-

mony of the said accomplice.

If the Sixth Circuit Court of Appeals had recognized

the merit of Petitioner's claim as set fourth above, it would

have reversed the judgment of the trial court, and remanded

the cause for a new trial.

OPINIONS BELOW

The Opinion of the United States Court of Appeals, Sixth

Circuit, dated October 21, 1977, affirming the conviction of

your Petitioner is reported at —————F..2d

printed as Appendix “A” hereto.

The Order of the United States Court of Appeals, Sixth

Circuit, dated December 7, 1977, granting Petitioner's Motion

for Leave to File a Petition for Rehearing Out of Time but

denying Petitioner's Petition for Rehearing is printed as

Appendix **B” hereto.

JURISDICTION

The Opinion of the United States Court of Appeals, Sixth

Circuit, from which Certiorari is sought was entered on October

2i, 1977. Petitioner's Petition for Rehearing was denied on

December 7, 1977.

Jurisdiction of this Court is involked under Title 28,

U.S.C. § 2101, and Rule 19 (b), Supreme Court Rules.

tv

QUESTIONS PRESENTED

The Order, Judgment and Decision of the United States

Court of Appeals, Sixth Circuit, dated October 21, 1977, from

which Certiorari is sought herein, affirmend the Judgment of

the United States District Court for the Eastern District of

Tennessee.

1. The questions presented on this Petition are:

Did the trial court commit plain and reversible error

by failing to give a specific cautionary instruction on the

testimony of the accomplice witness, where said witness’

testimony constituted the only evidence directly linking your

Petitioner to the crime charged; and where said witness’ testi-

mony was contradictory and thus, was the Order and Judgment

of the Sixth Circuit Court of Appeals of October 21, 1977,

which affirmepd the trial court, fundamental and clear error

depriving Petitioner of his right to a fair trial under the Fifth

and Sixth Amendments of the United States Constitution?

2. Was the Order and Judgment of the Sixth Circuit

Court of Appeals dated October 21, 1977 in conflict with the

decision of the Fifth Circuit Court of Appeals on the same

matter, as set fourth herein.

BEST COPY AVAILABLE

CONSTITUTIONAL PROVISIONS

1. United States Code Annotated. Const. Amnedment V.

AMENDMENT V

Capital crimes; double jeopardy ; self-

incrimination; due process; just compen-

sation for property

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indictment

of a Grand Jury, except in cases arising in the land or naval

forces, or in the Militia, when in actual service in time of

War or public danger; nor shall any person be subject for the

same offence to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty or property, without

due process of law; nor shall private property be taken for

public use, without just compensation.

2. United States Code Annotated. Const. Amendment VI.

AMENDMENT VI

JURY TRIAL FOR CRIMES, AND PROCEDURAL RIGHTS

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

of the State and district wherin the crime shall have been com-

mitted, which district shall have been previously ascertained by

law, and to be informed of the nature and cause of the accusa-

tion; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to

have the Assistance of Councel for his defense.

STATEMENT

NATURE OF THE CASE

This petition emanates from the Order, Judgment or

Decision of the Sixth Circuit Court of Appeals, which affirmed

the conviction of your Petitioner of Count I of a Two Count

Indictment which charged your Petitioner with counterfeit-

ing $200,000.00 worth of 50 cent stamps in violation of 18

U.S.C. § 501 and 2.

The Sixth Circuit Court of Appeals held that your Peti-

tioner’s Assignment of Error Number 111, pertaining to the

failure of the Trial Court to give a specific cautionary instruct-

ion on the testimony of the acknowledged accomplice, Donald

Howie, did not warrant extended treatment, and simply stated

that the District Court fairly instructed the jury on all the

applicable issues.

I

PERSONS INVOLVED

THE PETITIONER: FRANKLIN NEIL JACEK, also known

for the past ten (10) years as Frank Royce is a resident of

Fort Lauderdale, Florida and is 54 years old.

THE RESPONDENT: The United States of America, as

represented by the United States Attorney for the Eastern

District of Tennessee.

THE CASE

Your Petitioner was charged, along with James Arthur

Charlton, James Francis Swartz and Donald Lee Howie with

aiding and abetting each other in the forging and counterfeiting

of approximately Two Hundred Thousand ($200,000.00)

Dollars worth of fifty cent postage stamps.

In addition, James Arthur Charlton was named in the

second count of this Two Count Indictment along with Mark A.

Charlton and Donald Lee Howie with knowingly possessing

with the intent to use and sell about Two Hundred Thousand

($200,000.00) Dollars worth of forged and counterfeited

fifth cent postage stamps.

The case was called for trial before a jury on December

19, 1975 and prior to the impanelling of the jury, defendant

Donald Lee Howie entered his plea of guilty to the Two Counts

of the Indictment. Mr. Howie was then subpoenaed as a govern-

ment witness and did testify.

In his testimony, Howie stated that he had a specific

conversation with your Petitioner pertaining to the printing

and distribution of an “adult” book.

Howie testified later about a second conversation in

Alcoa, Tennessee at which your Petitioner was present, at which

a need for money was discussed. As a result of the conversation,

Howie obtained $2,500.00 for Royce for an unknown purpose.

Your Petitioner was implicated in the counterfeiting

charge primarily by Howie’s testimony that James Charlton was

to print the stamps and Mr. Royce was to get “fifty-two (527)

percent”.

Mr. Howie later described getting stamps from James

Charlton in the Maryville-Knoxville area, placing them into

two suitcases and being driven to Atlanta by Charlton's son

where het met only his girlfriend.

Howie boarded a plane at Atlants that same afternoon,

went to Fort Lauderdale where he was met by Mr. Swartz

and Mr. Royce.

They put the suitcases in the trunk of Mr. Swartzs’ car,

took them to Mr. Royce’s house and Mr. Royce put them into

his car, according to the accomplice Howie.

Howie then stated that he does not know what happened

to the stamps.

This testimony comprised the only evidence linking your

Petitioner to the crime for which he was convicted.

Your Petitioner testified in his defense that he met Howie

at the Fort Lauderdale Airport with Mr. Swartz at Mr. Swartzs’

request.

When Howie informed your Petitioner that he had 50 cent

stamps, your Petitioner testified that he told Howie to get them

out of here.

Your Petitioner then testified , contrary to Howie’s

testimony that Howie left with the stamps and took them up

to Atlanta the next day. That, while in Doris Cross’s apart-

ment, Howie opened up the suitcase in front of Swartz and

several witnesses, and showed them the stamps.

It is of particular significance that the Affidavit for Search

Warrant, which was introduced into evidence by the Defen-

dants, James Arthur Chariton, Mark A. Charlton and your

Petitioner on a Motion to Supress Hearing, prior to trial, stated

the following.

10

“Mr. Jim Wise, Huntsville, Alabama, provided

information to Postal Inspectors Weaver and

Paul Cummerdord at Huntsville, Alabama, on

Wednesday, June 18, 1975. That on June 7,

1975 at 805 Taft Avenue, Southeast, Atlanta,

Georgia he saw in the possession of Donald

Lee Howie and Jimmy Swartz two (2) suit-

cases and that the suitcases were opened in

his presence and he saw the two suitcases

contained sheets of U.S. postage stamps. .”

The Affiant, Ronald E. Siemanski further related statements

made to him demonstrating that the stamps were counterfeit.

Mr. Howie presented a chronological presentation of the

events beginning with his first knowledge of the counterfeit

stamps through his arrest on July 9. 1975.

Yet the only trip to Atlanta discussed by Mr. Howie prior

to his meeting Swartz and Royce at the Fort Lauderdale Air-

port, was when he met with his girlfriend and no one else.

Obviously, the meeting in Atlanta set fourth in the above-

mentioned Affidavit occurred after the meeting in Fort Lauder-

dale between Howie, Swartz, and Royce.

Yet, on one hand, Howie unequivocally states that he does

not know what happened to the stamps after this Fort Lauder-

dale meeting while the aforementioned Affidavit has Howie

present at a meeting in Atlanta where the stamps and suit-

cases were in his possession, after the Fort Lauderdale meeting.

11

The only alternative to this Atlanta meeting taking place

after the Fort Lauderdale meeting is if Howie had somehow

forgotten about this second Atlanta meeting which somehow

took place between the time Howie learned of the counterfeit

stamps and the time of the above-mentioned Fort Lauderdale

meeting.

Yet, even this remote alternative would throw consider-

able suspicion upon the testimony of Howie.

Thus, the testimony of Howie as to your Petitioner is

incredible or otherwise unsubstantial on its face.

Circumstantial evidence in the above-captioned case does

not corroborate Howie’s testimony in regard to your Petitioner,

but in fact tends to disprove it.

For, the chronology of the case support your Petitioner’s

testimony that he told Howie that he did not want the stamps

and that Howie:

“left with the bags and Mr. Swartz and his

wife were leaving the next day (for Atlanta).

Then I got a call from Mr. Swartz that Mr.

Howie had those stamps up in Atlanta at

Doris Cross’ apartment and opened them up

in front of several witnesses there and Mr.

Swartz was there...”

All of the factors mentioned by the United States Attor-

ney on page 13 of the Brief and Appendix for Plaintiff-Appellee

are equally or more consistent with your Petitioner's account of

the book printing venture between himself, Howie, and other

co-defendants (which Howie himself testified to); as well as

your Petitioner’s refusal to accept or even look at the stamps

in issue, as it is with the Government’s contentions.

In addition thereto, your Petitioner's testimony is con-

sistent with the Affidavit for Search Warrant referred to here-

in, just as the testimony of the accomplice Howie is Incon-

sistent therewith.

The circumstantial evidence of the presence of the two

suitcases and stamps at the Atlanta meeting mentioned in the

said Affidavit, the time sequence apparent from the record

as a whole, cooroborates you Petitioner's account of the facts,

just as it belies that of the accomplice witness, Howie.

Despite the above, the trial court failed to give a specific

cautionary instruction on the testimony of the accomplice

witness, Donald Lee Howie.

13

After completion of the trial on Friday, December 19,

1975, the jury returned its deliberations on Saturday, Decem-

ber 20, 1975, and subsequently returned a verdict of guilty on

both counts of the Indictment as to James Arthur Charlton, a

verdict of guilty as to your Petitioner on Count One of the

Indictment, a verdict of guilty as to Mark A. Charlton on both

counts of the Indictment, and a verdict of guilty as to James

Francis Swartz on Count One of the Indictment.

On January 22, 1976. your Petitioner received a sentence

of five years on Count One of the Indictment, said sentence was

subject to Title 18, U.S.C. § 4208 (a) (2).

STATUS OF THE LITIGATION

Your Petitioner perfected his Appeal to the Sixth Cir-

cuit Court of Appeals which denied same October 21, 1977.

On December 7, 1977, the Sixth Circuit Court of Appeals

denied Petitioner's Petition for a Rehearing.

This Petition emanates from a portion of that Order,

Judgment of Decision of the Sixth Court of Appeals,

14

which rejected an assertion by the Petitioner that the trial court

violated his fundamental right to a fair trial by failing to give a

specific cautionary instruction on the testimony of the accomp-

lice, Donald Lee Howie.

15

REASONS FOR GRANTING THE WRIT

It is clearly fundamentally erroneous for the Sixth Circuit the testimony of the accomplice.

The court went on to point out various inconsistences in

Court of Appeals to permit Petitioner's conviction to stand However, the court did not rely upon these inconsistences

where the trial court failed to give specific cautionary instru- in reaching its decision to reverse, for on page 132 it states:

tions on the testimony of the accomplice, where that testimony

was un-corroborated and, as seen from an examination of the

record contradictory.

The ruling of the Sixth Circuit Court as set fourth above

was clearly in conflict with decision of the Fifth Circuit Court

of Appeals on the same matter.

In Williamson vy. United States 332 F. 2d 123 (C.A.51964)

the Fifth Circuit Court of Appeals held that i\ was reversible

error for the trial court to fail to give a charge on accomplice’s

testimony, even though not requested by the defendant, in that

the record revealed that a fair trial required that the jury be

properly instructed on the evaluation and use of accomplice

testimony.

The court stated on page 127 that.

“It aids an understanding of this case to re-

cognize at the outset that the Government's

case was made entirely by the accomplice,

Mike Mackin; if his testimony is disregarded,

there is simply no case .. . What, and all, that

implicates Williamson under proper criminal

standards, is the testimony of Mackin. This is

not the case, therefore, in which the accomp-

lice applies significant testimony to overcome

psychologically weak evidence by a categor-

ical confession of guilt plus the inevitable

finger pointed at the accused.”

16

“Besides the obvious weakness in the testi-

mony of (the accomplice), and instruction of

this kind seems especially needed here. In the

first place, the law permits conviction in the

federal court on the uncorroborated testi-

mony of an accomplice. That means that it

can be and frequently is of crucial impor-

tance and it most certainly was here. Evidence

of that kind-and of that importance-is worthy

of special attention by the trial judge as he

translates the case into understandable terms

for jury resolution. Especially it is so in this

case. (The Defendant) could not, indeed did

not, deny doing these acts. . . but were these

acts taken to effectuate a scheme? Or were

they innocent, though perhaps incautious

acts of a loan officer handling papers in the

regular frequent routine of the bank. The

answer to that question tumed entirely on

belief or nonbelief of (the accomplice) for

the final analysis, it is not the parties who

determine the charge the judge gives to the

jury. The obligation rests squarely on the

shoulders of the trial judge. Of course the

system of time-tested rules of procedure

can rightfully expect competent counsel to

request appropriate charges or object to

affirmative errors or significant omissions.

But there are occasions, and this Court

recognizes them year by year, in which the

trial court’s erroneous action has such

a.

immediate and significant consequence that it

must be noticed as plain error. We think the

omission of the charge on accomplice testi-

mony was plain error and the only way to

eradicate it is to grant a new trial.”

In the instant case, your Petitioner also admitted to cer-

tain acts which he claimed were all related to the printing and

Distribution of an “adult ” book.

It is strictly the testimony of the accomplice Howie

which turns these acts into the steppingstones which lead

finally to the crime charged.

Nor does this case contain a categorical confession of

guilt by the accomplice Howie but, instead reveals a disavow-

ance by Howie of any knowledge of what happened to the

stamps after they were allegedly left with your Petitioner;

although the Affidavit for Search Warrant referred to here-

in demonstrates otherwise.

However, like Williamson, it was more than the incon-

sistencies of the accomplices testimony and the admission of

your Petitioner to acts which could be construed in more than

one way, that demonstrated the crucial need for the trial court

to give specific cautionary instruction on the testimony of the

accomplice witness.

18.

For the testimony of Howie was of crucial importance to

the Government’s case. It was upon Howie's testimony and the

belief or nonbelief of the jury therein that the acts of your

Petitioner were deemed innocent, or, became the means where-

by your Petitioner aided and abetted his co-defendants in the

crime set fourth in Count One of the Indictment.

In addition thereto, the failure of the trial court to instruct

the jury on accomplice testimony violated your Petitioner's

fundamental Constitutional rights to due process of law under

Amendment V of the Constitution of the United States, as well

as your Petitioner’s right to a fair and impartial trial under

Amendment VI of the Constitution of the United States.

19.

CONCLUSION

This Honorable Court now has for a consideration a case

in which the trial court failed to give cautionary instruction to

the jury as to accomplice testimony.

Although this instruction was not requested by counsel,

the court violated Petitioner's fundamental, constitutional

right to a fair trial by failing to give this instruction sua sponte

because of the following reasons:

1. The Government's case against your Petitioner was made

entirely by the accomplice witness, Howie.

2. The testimony of the accomplice witness Howie was

contradictory.

3. The testimony of the accomplice witness Howie was of

crucial importance to this case.

4. Your Petitioner admitted to certain ects which could be

interpreted as being innocent, or acts in furtherance of the

crime charged depending upon the credibility of the accomplice

Howie.

The Sixth Circuit Court of Appeals affirmed your Peti-

tioner’s conviction and in doing so, rejected Petitioner's argu-

ment that the trial court’s failure to instruct the jury on accom-

plice testimony was plain and reversible error.

This Decision, Order and Judgment of the Sixth Circuit

Court of Appeals is in direct conflict with the Decision of the

Fifth Circuit Court of Appeals on the same matter, as well as

being a fundamental violation of your Petitioner’s constitu-

tional right to a fair trial and due process of law.

For such reasons we respectfully urge that this Court

grant Certiorari.

Respectfully submitted,

LAW OFFICES OF HARLAN STREET, P.A.

12700 Biscayne Boulevard

North Miami, Florida 33181

Attomeys for Petitioner

HARLAN STREET

I HEREBY CERTIFY that a true and correct copy of the

foregoing Petition for Writ of Certiorari was mailed to Philip P.

Durand, Valley Fidelity Bank Building, Knoxville, Tennessee,

37902, Gene A. Stanley, 1111 Northshore Drive, Knoxville

Building, Knoxville, Tennessee 37012, F. Michael Ellis, Esquire

Bank of Knoxville Building, Knoxville, Tennessee 37012, John

L. Bowers, Jr., United States Attorney, Eastern District of

Tennesse, Knoxville, Tennessee this 7th day of January, 1978.

LAW OFFICES OF HARLAN STREET, P.A.

HARLAN STREET

Nos. 76-1454-5-6

UNITED STATES COURT GF APPEALS

FOR THE SIXTH CIRCUIT

Unrrep STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

JaMes ARTHUR CHARLTON, APPEAL from the

Defendant-Appellant (76-1454) | United States District

Court for the Eastern

FRANKLIN N. Jacek, a/k/a FRANK District of Tennessee.

Royce,

Defendant-Appellant (76-1455)

James Francis SWARTZ,

Defendant-Appellant (76-1456) |

Decided and Filed October 21, 1977.

Before: Pururs, Chief Judge; Epwarps and Encet, Cir-

cuit Judges.

EncEL, Circuit Judge. This is an appeal by three defendants

convicted of forging and counterfeiting fifty-cent postage

stamps worth approximately $200,000, in violation of 18 U.S.C.

$§ 501 and 2." Of the numerous grounds asserted for reversal,

118 U.S.C. §501 states in relevant part:

Whoever forges or counterfeits any postage stamp, postage meter

stamp, or any stamp printed upon any stamped envelope, or

postal card, or any die, plate, or engraving thereof; or

Whoever makes or prints, or knowingly uses or sells, or possesses

with intent to use or sell, any such forged or counterfeited

APPENDIX "A"

2 United States v. Charlton, et al. Nos. 76-1454/5/6

only one merits extended treatment. Defendant James Arthur

Charlton claims that in-custody oral statements given to the

government agents on the evening of his arrest were made in-

voluntarily. We hold that Charlton's statements, while vol-

untary under traditional tests, were taken in violation of the

specific proscriptions of Miranda v. Arizona, 384 U.S. 436

(1966), and should not have been admitted into evidence against

him. Nevertheless, we hold that the introduction of those

statements was harmless beyond a reasonable doubt under

Chapman v. California, 386 U.S. 18 (1967).

Charlton was arrested without a warrant at his home shortly

after 10:00 p.m. on June 25, 1975. Earlier that evening spe-

cial agents of the United States Secret Service, pursuant to

a search warrant, entered offices rented by Charlton at 214

East Harper Street in Maryville, Tennessee, and seized large

quantities of the counterfeit stamps and the paraphernalia for

manufacturing them. Upon his arrest, Charlton was taken

to the courthouse in Knoxville, Tennessee, where he was finger-

printed and otherwise processed in connection with his ar-

rest. Approximately two hours later he was fully advised

of his constitutional rights. He declined to sign a written waiv-

er of those rights and instead responded that he wanted an

attorney. He expressed no desire to talk to the agents. How-

ever, they questioned him, for only a short period apparently,

in spite of his request. Shortly after 1:00 a.m. Special Agent

MacVean Sweazey came into the room and said, “Well, got

your son up here. What are you going to do about that?”

Charlton did not answer Sweazey immediately, but the of-

ficer persisted with words to the effect that “if you want to

keep your son, Mark, out of the case, he is (sic you are)

going to have to explain how he was (sic you were) involved.

and show how Mark could be all around the counterfeiting

operation and not know about it.”

postage stamp, postage meter stamp, stamped envelope, postal

card, die, plate, or engraving; .. . shall be fined net more than

$500 or imprisoned not more than five years, or both.

BEST COPY AVAILABLE

Nos. 76-1454/5/6 United States v. Charlton, et al. 3

Thereafter Charlton made the incriminating statements

which were later introduced into evidence. The interroga-

tion continued unti] about 3:00 a.m. No attorney was ever

procured and Charlton refused to sign a written statement con-

cerning the counterfeiting operation.

At a pretrial suppression hearing Charlton readily admitted

that he had understood his rights, but claimed that he had been

fatigued because the hour was late and he had worked all

of the previous day in his employment as a draftsman for the

Tennessee Valley Authority. In answering a question on di-

rect examination as to whether he made the statement to the

government of his own free will, Charlton stated:

A. I talked to the postal inspector and Mr. Sweazey.

J told them I would talk to them but the only thing,

clear everybody out of the room and what I was

going to say would be off the record.

Q. Listen to my question. Did you speak to them of

your own free will?

A. Not really. It wasn’t, not in the way you put it.

In other words —

They actually got me mad because they kept hinting

to the fact I didn’t care anything about my son, and

they actually used my son until they got me mad,

really.

On cross examination Charlton basically repeated the story

and explained:

Well, they had stopped, this was about an hour later

when they came back into the room and they said that

my son had made a statement to them and that (sic) I

want to he!p him. That is when they started using my son

and that’s when they got me mad, when they started using

my son.

BEST COPY AVAILABLE =

4 United States v. Charlton, et al. Nos. 76-1454/5/6

Charlton further claimed that the statement he gave was en-

tirely fictitious.

At the conclusion of the hearing, the trial judge ruled:

I hold that this statement can go to the jury, everything

that was said there. There was no coercion, this man’s

coercion, that’s — well, there isn’t any basis for you say-

ing that, Counsel, according to his own testimony. He

said he was mad.

Charlton’s testimony concerning the circumstances of his

interrogation was unrefuted. The government called no wit-

nesses.

The issue of voluntariness of a confession is a mixed ques-

tion of fact and law. United States v. Brown, 557 F. 2d 541,

547 (6th Cir. 1977). The applicable standard is whether

the confession was the product of a free and rational choice,

and therefore the focus is upon the state of mind of the

accused at the time the confession was made. In Brown,

we quoted from Culombe v. Connecticut, 367 U.S. 568, 602

(1961):

The ultimate test remains that which has been the only

clearly established test in Anglo-American courts for two

hundred years: the test of voluntariness. Is the confession

the product of an essentially free and unconstrained

choice by its maker? If it is, if he has willed to confess,

it may be used against him. If it is not, if his will has

been overborne and his capacity for self-determination

critically impaired, the use of his confession offends due

process.

557 F.2d at 546. See United States v. Washington, 45 U.S.L.W.

4465, 4467 (U.S. May 23, 1977).

Upon our examination of the record and according ap-

propriate deference to the trial judge’s superior opportunity to

observe the demeanor of the witnesses, we conclude that in

the traditional sense Charlton’s statements were voluntary.

Nos. 76-1454/5/6 United States v. Charlton, et al. 5

There was no lengthy period of detention or repeated rounds

of interrogation. There was no indication of any physical

abuse. Charlton was informed of his constitutional rights and

obviously understood them. He was not an impressionable

youth, nor was he lacking in intelligence. See Schneckloth v.

Bustamonte, 412 U.S. 218, 226 (1973).

We have little doubt that the defendant was ultimately per-

suaded to testify by his anger at discovering that his twenty-

year old son, Mark, had also been arrested. It was apparent

at the suppression hearing and at the trial that the defendant

was highly protective of Mark. Obviously anyone who knows

his rights and determines to confess does so for a reason.

That the defendant’s reason was to protect his son does not,

in our judgment, render his confession involuntary or necessi-

tate a finding that he was coerced or that his will was

overborne.

Of considerably greater difficulty is whether, although other-

wise voluntary, Charlton’s statement must nevertheless be

suppressed because the government agents persisted in ques-

tioning him after he had declined to talk and had requested

counsel. Defendant relies upon the following language in

Mirandc, supra, 384 U.S. at 473-74:

Once warnings have heen given, the subsequent pro-

cedure is clear. If the individual indicates in any manner,

at any time prior to or during questioning, that he wishes

to remain silent, the interrogation must cease. At this

point he has shown that he intends to exercise his Fifth

Amendment privilege; any statement taken after the per-

son invokes his privilege cannot be other than the product

of compulsion, subtle or otherwise. Without the right to

cut off questioning, the setting of in-custody interrogation

operates on the individual to overcome free choice in pro-

ducing a statement after the privilege has been once in-

voked. If the individual states that he wants an attorney,

the interrogation must cease until an attorney is present.

At that time, the individual must have an opportunity to

6 United States v. Charlton, et al. Nos. 76-1434/5/6

confer with the attomey and to have him present during

any subsequent questioning. If the individual cannot ob-

tain an attorney and he indicates that he wants one be-

fore speaking to police, they must respect his decision to

remain silent.

(footnote omitted).

While the traditional determination of voluntariness had

largely turned on a case-by-case consideration, Miranda re-

quired exclusion of any statements stemming from custodial in-

terrogation unless the prosecution demonstrated compliance

with its specific, prophylactic safeguards. Thus, if law enforce-

ment officers fail to give the specified warnings before inter-

rogation or fail to follow its guidelines during interrogation,

the statement derived therefrom may be suppressed, even

though it is otherwise “wholly voluntary.” Michigan v. Mosley,

423 U.S. 96, 99-100 (1975); Michigan v. Tucker, 417 U.S.

433, 443 (1974).

In Michigan v. Mosley, supra, police questioning was held

proper even though the accused had earlier indicated his de-

sire to remain silent. There the Supreme Court rejected a

strict rule which would totally preclude all further custodial

interrogation. At the same time it observed that to constmie

Miranda to require only the immediate cessation of questioning

would permit a resumption of interrogation after a momentary

respite, which would undermine the will of the accused:

Clearly, therefore, neither this passage nor any other

passage in the Miranda opinion can sensibly be read to

create a per se proscription of indefinite duration upon

any further questioning by any police officer on any

subject, once the person in custody has indicated a de-

sire to remain silent.

A reasonable and faithful interpretation of the Miranda

opinion must rest on the intention of the Court in that

case to adopt “fully effective means . . . to notify the

Nos. 76-1454/5/6 United States v. Charlton, et al. 7

person of his right of silence and to assure that the exer-

cise of the right will be scrupulously honored. . . .” 384

U. S., at 479. The critical safeguard identified in the

passage at issue is a person’s “right to cut of question-

ing.” Id., at 474. Through the exercise of his option

to terminate questioning he can control the time at which

questioning occurs, the subjects discussed, and the dura-

tion of the interrogation. The requirement that law

enforcement authorities must respect a person's exercise

of that option counteracts the coercive pressures of the

custodial setting. We therefore conclude that the ad-

tnissibility of statements obtained after the person in

custodv has decided to remain silent depends under

Miranda on whether his “right to cut off questioning”

was “scrupulonsly honored.”

423 U.S. at 102-04 (footnotes omitted).

Turning to the facts here, Charlton declined to discuss

the counterfeit operation, but the agents continued to ques-

tion him for a presumably short period. Without giving

further warnings, the agents later induced him to speak by

stressing his son’s precarious position if he remained silent.

Charlton obviously did not succeed in persuading them to

keep his statements “off the record.”?

As for Charlton’s request for counsel, the Supreme Court

in Michigan v. Mosley explicitly noted that the case did not

present the question of what procedures were required where

such a request was made. However, in a concurring opinion,

Justice White explicitly opined that whatever might he the pro-

priety of resuming questioning after an accused had expressed

a desire to remain silent, if an attorney was also requested.

Miranda created a per se nile against further interrogation until

2 There is no evidence that any of the officers ever promised such

confidentiality to his statements. The richts which Michigan v. Mos!e

commands be “scruptuious!y honored” do not in our judgment include

a right to control tne use of a statement which is otherwise volun-

tarily given with full knowledge of its potential incmminatory value

8 United States v. Charlton, et al. Nos. 76-1454/5/6

the attomey was in fact present, thus precluding a waiver.

423 US. at 109-110.

In spite of the literal language from Miranda, and of Justice

White's observations about it, the prevailing conclusion among

the courts of appeals is that a waiver is possible even after

counsel has been requested. See, e.g., United States v. Grant,

549 F. 2d 942, 945 n. 4 (4th Cir. 1977); United States v. Pheas-

ter, 544 F. 2d 353, 367-GS (9th Cir. 1976), cert. denied. 97

S.Ct. 124; United States v. Womack, 542 F. 2d 1047, 1050

(9th Cir. 1976); Biddy v. Diamond, 516 F. 2d 118, 122 (5th

Cir. 1975), cert. denied, 425 U.S. 950 (1976).

In United States v. Dority, 487 F.2d 846 (6th Cir. 1973),

we upheld the admission of a confession on the basis of a

waiver by the defendant of the right to counsel. At the time

federal agents sought to question lim, the defendant was

jailed on unrelated state charges. He did not request an

attorney and proceeded to sign a waiver form, but unknown

to the interrogating officers, the accused already had an ap

pointed counsel acting for him in connection with the state

offenses. The officers did not notify the attomey of the new

federal charge before taking a statement. Accord, United

States v. Daniels, 528 F. 2:1 705, 707 (6th Cir. 1976).

But, in Combs v. Wingo, 465 F. 2d 96 (6th Cir. 1972),

cited by defendant Charlton, our citcuit took a stricter ap-

proach and found a violation of Miranda by the admission in

a Kentucky state criminal trial of the defendant's confession

made when counsel had been requested but not furnished.

There, after indicating he wished an attorney, the defendant

was shown the ballistic report on a rifle and bullet which

allegedly had been used in the murder, whereupon he broke

down and confessed. Concluding that the statement violated

the Miranda guidelines, our court agreed with the dissenting

judges in the Kentucky Court of Appeals that the act of

showing the ballistic reports to the defendant was essentially

a form of continued interrogation, the only possible object of

Nos. 76-1454/5/6 United States v. Charlton, et al. 9

which was to break down the defendant's will and elicit the

confession.

In the recent case of Brewer v. Williams, 45 U.S.L.W. 4287

(U.S. March 23, 1977), the defendant had been induced by

the importunities of the law enforcement officers to reveal

the whereabouts of his murder victim’s body while being

transported between two lowa cities. he detendant already

had an attorney but was separated from him during the trip

with the express understanding that no questioning would

take place in his absence.

In affirming the decision of the Eighth Circuit striking

down the conviction, the majority declined to determine if

the Miranda guidelines were violated and relied solely instead

upon a denial of the Sixth Amendment right to counsel. It

emphasized that a waiver was permissible, but only if the

prosecution had proved “an intentional relinquishment or

abandonment vf a known right or privilege” under Johnson v.

Zerbst, 304 U.S. 45S, 464 (1938). Applying that standard and

indulging in every reasonable presumption against waiver, the

Supreme Court concluded that the record fell far short of

sustaining that burden, even though Williams was informed

of his rights and appeared to understand them.

In Brewer v. Williams the defendant had already consulted

his counsel following arrest and was formally arraigned. In

contrast, defendant Charlton had no opportunity to receive

initial advice of an attorney upon his express request, and the

alleged waiver occurred only a short time after warnings were

given and before any contact with the judicial system. Be-

cause of the differences in the factual pattern presented here,

it is not clear from Brewer v. Williams that the Court would

reject a per se rule under the literal language of Miranda. We

need not decide that question here, because we concinde that

the government failed to show a valid waiver in any event.

Under the strict standard of Johnson v. Zerbst, the mere

demonstration that the confession came without objection

after a resumption of questioning is inadequate evidence of

10 United States v. Charlton, et al. Nos. 76-1454/5/6

waiver. We conclude that the defendant here did not know-

ingly and intelligently waive his right to counsel. He refused

to sign a waiver of rights and expressly requested counsel.

He had initially- refused to talk about the counterfeiting

operation, but was questioned anyway. The information about

Charlton’s son was clearly presented in a coercive manner

without warnings being given again. It cannot be said upon

the record here that the officers scrupulously honored Charl-

ton’s decision to remain silent and to see an attorney. A

heavy burden was upon the government and it was not met.

HARMLESS ERROR

At oral argument of this case the government urged for the

first time that even if the confession given by Charlton vio-

lated his rights under Miranda, its admission under these

circumstances was harmless beyond a reasonable doubt within

the meaning of Chapman v. California, 386 U.S. 18 (1967).

In Chapman a majority of the Supreme Court held that con-

sistent with its earlier position in Puhy v. Connecticut, 375 U.S.

§5 (1963):

[Before a federal constitutional error can be held harm-

less, the court must be able to declare a belief that it

was harmless beyond a reasonable doubt. While ap-

pellate courts do not ordinarily have the original task of

applying such a test it is a familiar standard to all courts,

and we believe its adoption will provide a more workable

standard, although achieving the same result as that

aimed at in our Fahy case.

386 U.S. at 24 (footnote omitted).

At the same time, the Court observed in Chapman that

“there are some constitutional rights so basic to a fair trial

that their infraction can never be treated as harmless error.”

386 U.S. at 23. It cited as an example Payne y. Arkansas,

356 U.S. 560 (1958), wherein the admission of a plainly

Nos. 76-1454/5/6 United States v. Charlton, et al. ll

coerced and involuntary confession was held to require a new

trial. There the Court held that “even though there may

have been sufficient evidence, apart from the coerced confes-

sion, to support a judgment of conviction, the admission in

evidence, over objection, of the coerced confession vitiates

the judgment because it violates the Due Process Clause of

the Fourteenth Amendment.” 356 U:S. at 568.

While other decisions of the Supreme Court have held that

the admission of an involuntary confession commands reversal

regardless of other evidence of guilt, see, e.g., Haynes v.

Washington, 373 U.S. 503, 518 (1963); Lynumn v. Illinois,

372 U.S. 528, 537 (1963), at least one recent decision has

apparently applied the harmless error rule in the context of

an alleged involuntary confession. Milton v. Wainwright,

407 U.S. 371 (1972). There, at petitioner Milton's state mur-

der trial, the prosecution introduced evidence of his admis-

sions and statements made to a police officer named Lang-

ford, who had gained his confidence while posing as a cell

mate. At the time Milton was represented by appointed

counsel in the pending proceeding. The Court assumed

arguendo that the statements were involuntary under Fifth

Amendment standards. However, it found their admission

was harmless beyond a reasonable doubt, especially noting

that the overwhelming evidence included no less than three

full and validly obtained confessions. Of interest, the dissent-

ing justices, while disputing the appropriateness of application

of the harmless error rule on the facts, did not claim that it

was unavailable, because of the nature of the constitutional

violation.

On the other hand, our circuit, without expressly addressing

the issue, has rather consistently applied the Chapman rule

where otherwise appropriate, if the constitutional error in-

volved the admission of confessions secured in violation of the

Miranda guidelines, though otherwise voluntary under the

traditional analysis. See, e.g., United States v. Eagleton, 437

F. 24 451, 452 (6th Cir. 1971); Whitesell v. Perini, 419 F.

12 United Stctes v. Charlton, et al. Nos. 76-1454/5/6

2d 95, 96 (6th Cir. 1969); United States v. Smith, 418 F. 2d

223, 224 (6th Cir. 1969). Cf. Hayton v. Egeler, 555 F. 2d

599, 603 (6th Cir. 1977); Minor v. Black, 527 ¥. 2d 1, 5 (6th

Cir. 1975), cert. denied, 427 U.S. 904 (1976). |

~ While Miranda and the decisions which follow it are pre-

mised upon constitutional considerations, there are differences

between those confessions which are inherently coercive and

which have been traditionally stricken as lacking in volun-

tariness and those which, though otherwise voluntary, have

failed to comply with the strict procedural requirements of

Miranda. See Smith v. Estelle, 527 F. 2d 430 (5th Cir. 1976).

We are not required to reach the question of what circum-

stances, if any, allow the application of the harmless error

rule in Chapman v. California where the confession is coerced

and violates traditional standards of voluntariness. It is suf-

ficient here to hold that where a confession, otherwise volun-

tary, is inadmissible for failure to comply with the strict pro-

cedural requirements of Miranda, reversal is not required if

upon the facts, the court can find beyond a reasonable doubt

that its use at trial was harmless and could not have affected

the outcome. We see no reason why in such circumstances

the court may not weigh the therapeutic benefits of Miranda

against the very real burden upon the system and the parties

of requiring a new trial where the issue could never seriously

be in doubt. .

Applying the Chapman harmless error nile here, we con-

clude that there is no reasonable doubt either of Charlton’s

guilt or the fact that conviction would as surely have followed

had his statements not been received. The evidence was

overwhelming.

Charlton’s involvement was shown by extensive physical

and testimonial evidence that directly implicated him in the

counterfeiting operation. Secret Service Agent Semansky

who executed the search of the East Harper ‘Street building.

testified that several thousand sheets of the counterfcit stamps

were seized as well as the press, hole perforator, plates, ond

Nos. 76-1454/5/6 United States v. Charlton, et al. 13

other paraphernalia used in their production. Charlton's

fingerprints were found on some of those stamps and plates,

and there was no doubt that he fully controlled the premises

on East Harper Street. Although Charlton's son had tech-

nically rented the building, the second installment of rent

had been paid by the DBD Corporation, controlled and formed

by Charlton. Numerous suppliers of materials and equipment

testified that Charlton had made purchases. Charlton’s own

son testified to his discovery and knowledge of bags of stamps

and plates on the premises several weeks earlier and was

once asked to leave by his father as he approached the op-

erating machinery. Co-defendant Howie, after pleading

guilty, testified to Charlton’s involvement and to the arrange-

ment by which the anticipated proceeds were to be divided.

On the other hand, testimony concerning the incriminating

statement, while received at trial, was not unduly emphasized.

The statement included an admission by Charlton of his

involvement in the illegal operation, but also contained at

least a feeble effort to establish a defense of duress. If not

very credible, it appears to have been the only defense which

Charlton was able to pursue at the trial and his counsel at

least made an effort to present it through cross-examination.

Charlton did not himself testify.

Numerous other assertions of error are made with respect

to all three defendants. Upon an examination of the entire

record, the court finds that the district court did not err,

upon the facts before it, in refusing an evidentiary hearing

concerming—allegations of omissions of material facts by the

government agents in preparing the affidavit in support of

the search warrant.

Likewise, the trial court did not err in refusing to suppress

and exclude evidence obtained by the search warrant, as we

find without merit the appellants’ claim that the facts set

forth in the affidavit were insufficient to establish probable

cause. Also, contrary to the claims of the appellants, the

14 United Staies v. Charlton, et al. Nos. 76-1454/5/6

district court fairly instructed the jury on all the applicable

issues. Finally, the court did not err in denying appellant

Swartz’s application for a continuance, and as to him there

was ample evidence to support the jury verdict finding him

guilty.

The court being of the opinion that in al! other respects

the defendants received a fair trial, free from any prejudicial

error, the judgment of the district court is affirmed.

No. 76—1455

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff— Appellee ORDER

y FILED

DEC. 7, 1977

FRANKLIN NEIL JACEK, JOHN P. HELMAN. CLERK

Defendant— Appellant

Before: PHILLIPS, Chief Judge; EDWARDS and ENGEL,

Circuit Judges Franklin Jacek, appellant herein, has

filed a motion for leave to file a petition for rehearing out of

time on November 14, 1977. With that motion, he tendered a

petition for rehearing.

Upon consideration, although the court expresses reser-

vations concerning the failure of counsel filing the motion to

obtain proper substitution of present counsel or to obtain

the approval of this court for the relief of the former counsel

on appeal, on consideration,

IT IS ORDERED that the motion is hereby granted.

Upon consideration of the petition for rehearing here-

in accepted for filing, the court being of the opinion that the

same is without merit.

APPENDIX “B”

‘

tv

'

76—1455

IT IS ORDERED that the petition for rehearing be and it

is hereby denied.

ENTERED BY ORDER OF THE COURT

John P. Helman

Clerk