Petition — Carpenter v. United States

Guprema Court, U. 7

FILED

APR 5 1980

“MICHAEL RODAK, JR., CLERR

7 HE

Supreme Court of the United States

OCTOBER TERM, 1979

No. ”w9-1561

CHARLES WINFRED CARPENTER, JR.,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

GARY HAGMAN

1 Austin Place

P.O. Box 639

Weatherford, Texas 76086

Attorney for Petitioner

SCOFIELDS' QUALITY PRINTERS, P. O. BOX 53096, N. O., LA. 70153 - 504/822-1611

SUBJECT INDEX

Page

EE EE 2

I Sa eee SO. BU iad ded bad divciswer 2

ee ce cccceestes 2

Constitutional Provisions and Statutes

i es aw Bites Ws oath obec cees 3

Statement of the Case ......... ich Robie S ees 6a ss 3

Statement of Reasons for Granting

tl ge 5

1. The Fifth Circuit Court's Opinion is in

Conflict With the Ninth Circuit

Court’s Opinion on the Exclusive

Charge Issue ....... ae eae 6

2. The Court Below Refused to Review

the Petitioner’s Claim that His Fifth

and Sixth Amendment Rights were

Violated by Subtle In-Custody Inter-

rogation in the Absence of Counsel ...... 9

ERE SNA Eg SR es or 11

Ce Oe i ik Sie i's NE end ec csls ovine 12

Appendix A — Opinion of the United States

Court of Appeals for the Fifth Circuit ........ la

Appendix B — Judgment of the United States

Court of Appeals for the Fifth Circuit ....... lla

li

SUBJECT INDEX (Continued)

Page

Appendix C — Denial of Rehearing by the

United States Court of Appeals for the Fifth

COCUNE bcs ecivivenseverces eGpeees Clee aes 12a

Appendix D — Title 18 United States Code,

BERD 6 ce dhe rene Wey ewes Waweek coh eens bee 14a

Appendix E — Title 18 United States Code,

WOE. TOSL . casas tie cits hbcdasesany sewer 17a

TABLE OF AUTHORITIES CITED

Cases:

Brewer v. Williams, 430 U.S. 387 (1977) ...... 10,11

Rhode Island v. Innis, 391 A.2d 1158, Cert.

grant, G46 US. SOG (ROT ccs cate ee dt 40 ks 4,10

United States v. Culbert, 435 U.S. 371 (1978) ... 5,7

United States v. Snell, 550 F.2d 515

CORR Se Se vac Ss ai hs vas Che 6,7

United States Constitution Cited:

PC IOIUOING ob 6 dons o dakh so cecaveeuten 3,6,9-11

DIRETe PICTON ia ikis 5a ddss divu thus 3,6,9-11

Statutes Cited:

Title 18 United States Code, Section 924(c) ..... 3,4

Title 18 United States Code, Section 1951 .. 2-4,6-8

Title 18 United States Code, Section 2113 ..2,3,5,7,8

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

CHARLES WINFRED CARPENTER, JR.,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner respectfully prays that a writ of certiorari

issue to the United States Court of Appeals for the

Fifth Circuit to review the final order of that Court

entered February 4, 1980, which affirmed petitioner’s

conviction and five year sentence under the Hobbs

Act.

2

OPINION BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit is reported by Slip Opinion dated

February 4, 1980, bearing Court of Appeals No. 79-

5209, and is set forth in Appendix A hereto.

JURISDICTION

The opinion of the United States Court of Appeals

for the Fifth Circuit was filed February 4, 1980. A peti-

tion for rehearing was timely filed and was denied by an

Order entered on March 7, 1980, at which time the de-

cision appealed from became final.

The jurisdiction of this Court is invoked under 28

United States Code, Section 1254(1).

QUESTIONS PRESENTED

1. Is the Bank Robbery Statute, 18 U.S.C., Section

2113(a) the exclusive criminal charge available to the

Government in a case involving extortion of a federal-

ly insured bank as held by the Ninth Circuit Court of

Appeals, or is the Fifth Circuit Court of Appeals cor-

rect in holding that the Hobbs Act, 18 U.S.C., Section

1951 is also a proper charge under the same facts?

2. Did the admission into evidence of a statement

obtained from the petitioner while he was under arrest,

3

and had twice requested to consult with an attorney

violate his Fitth Amendment right to remain silent and

his Sixth Amendment right to counsel?

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

1. The Fifth Amendment tothe Constitution of the

United States.

2. The Sixth Amendment to the Constitution of

the United States.

3. Title 18 United States Code, Section 2113, set

forth in Appendix D, post.

4. Title 18 United States Code, Section 1951, set

forth in Appendix E, post.

5. Title 18 United States Code, Section 924(c).

STATEMENT OF THE CASE

This case presents two separate and clearly defined

issues. The first is whether or not the Federal Bank

Robbery Statute, 18 U.S.C., Section 2113 is the ex-

clusive charge available to the Government in prose-

cuting a bank extortion.

The second issue involves a fact situationsimilar toa

case which was recently argued before this Court,

4

Rhode Island v. Innis, 1978, Supreme Court No. 78-1076,

wherein a confession was introduced into evidence ina

criminal trial over the objection that it was obtained by

subtle in-custody interrogation in absence of counsel,

and that counsel was not waived, but was repeatedly

requested.

On December 19, 1978, the petitioner, Charles Win-

fred Carpenter, Jr., was named in two counts of a

three-count indictment returned by the Federal Grand

Jury sitting in Tyler, Texas for the Eastern District of

Texas. The indictment charged the petitioner with vio-

lation of the Hobbs Act by attempted extortion of the

First National Bank of Jacksonville, Texas and with vio-

lation of Title 18, U.S.C. 924(c), use of a firearm in the

commission of a Federal felony.

After a three-day trial in Federal District Court

which concluded on March 21, 1979, the petitioner was

convicted of the Hobbs Act charge and acquitted on the

firearms charge. On April 2, 1979, petitioner was sen-

tenced to serve five years in the custody of the Attor-

ney General. Petitioner gave notice of appeal of his con-

viction and sentence to the United States Court of

Appeals for the Fifth Circuit on April 5, 1979.

On February 4, 1980 the Circuit Court rendered its

decision. The Circuit Court rejected all of petitioner's

arguments and authorities and affirmed petitioner’s

conviction.

5

A Petition for Rehearing was filed by petitioner

specifically pointing out to the Court that its opinion

did not deal at all with the issue of whether or not the

Bank Robbery Statute was the exclusive charge avail-

able to the Government. The Court of Appeals had dis-

posed of the issue by holding this Court’s opinion in

United States v. Culbert, 435 U.S. 371, (1978) to be disposi-

tive of the issue of whether or not the Bank Robbery

Statute is the exclusive charge available in a bank ex-

tortion, (post, Appendix A).

It was also pointed out in the petition for rehearing

that the Circuit Court in its desire.to avoid what it

termed “the Brewer caldron”, had avoided the issue of

whether or not the Government had discharged its

heavy burden to show waiver of the petitioner's right

to counsel before giving a statement that was intro-

duced into evidence against him at trial. The Circuit

Court simply relied on the finding of the trial court that

no in-custody questioning of petitioner occurred. The

petition for rehearing was denied on March 7, 1980,

without opinion. (post, Appendix C.)

STATEMENT OF REASONS FOR GRANTING

THE WRIT OF CERTIORARI

The decision below, because it essentially chose to

avoid the issues presented by petitioner, has created a

conflict with the Ninth Circuit Court of Appeals deci-

sion that the Bank Robbery Statute is the exclusive

6

charge available to the Government when akidnap-ex-

tortion of a bank is attempted. The decision below also

has the effect of making the trial court’s decision on

whether or not a criminal defendant was interrogated

after requesting an attorney dispositive of that issue.

Admittedly this holding would lighten the load of

appellate courts, but the Constitution and Statutes of

the United States make this Court the final Arbiter of

the Fifth and Sixth Amendment rights, not the District

Courts.

1. The Fifth Circuit Court’s Opinion is in

Con‘lict With the Ninth Circuit Court's

Opinion on the Exclusive Charge Issue.

The Ninth Circuit Court of Appeals in United States v.

Snell, 550 F.2d 515 at 518 held:

“Agreeing, as we do, that the bank robbery

statute provides the exclusive remedy for con-

duct within its coverage, we are compelled to

reverse Schmidt and Snell’s convictions for

attempted extortion.”

The defendants in Snell had been indicted and con-

victed under the Hobbs Act for attempted extortion of

a bank. The defendants attempted to kidnap and hold

for ransom the wife of the manager of a Federally in-

sured bank. The facts of the case at bench are the same

except that the kidnapping of a bank officer’s family

7

member was accomplished which would put this case

further into the coverage of the bank robbery statute.

The Fifth Circuit held that this Court’s decision in

United States v. Culbert, 435 U.S. 371 (1978) disposed of

the issue presented by Snell. The Fifth Circuit’s opinion

did admit that Culbert was broadly worded on this pre-

cise issue.

It is the contention of the Petitioner that Culbert did

not dealat all with this issue, but expressly reserved the

issue as revealed in footnote one of the Culbert deci-

sion. This Court stated in response to the Solicitor

General’s denial of the United States Attorney’s

authority to concede that the bank robbery statute had

no application in bank extortion cases:

“We express no view on the validity of the

United States Attorney’s interpretation of 18

U.S.C. 2113(a).”

This Court’s opinion in Culbert appears to deal with

essentially a certified question of whether or not

“racketeering” is a necessary element of proof in a

Hobbs Act violation. The fact that a Federally insured

bank was the intended victim of the extortion scheme

was given no consideration by the Court in reaching its

decision.

The bank robbery statute is an extremely compre-

hensive statute which has grown with the need to pro-

8

tect Federally insured banks. The Hobbs Act was cer-

tainly not designed to protect banks — but interstate

commerce in general. Certainly, the general should

yield to the specific. This is particularly true in kidnap-

extortion situations. It was argued in the Court below

that the bank was not the intended victim at all — but

the parents were the intended victims of the extortion. °

The wealthy parents just happened to be officers of a

Federally insured bank.

The decision of the Court below extends the Hobbs

Act protection to bank employees in kidnap-extortion

situations. This result is not what Congress intended

because the States are not preempted from intra-state

kidnapping. The Ninth Circuit Court’s ruling that the

bank robbery statute is the exclusive charge available

to the Government in a kidnap-extortion situation re-

sults in protecting bank assets when they are threat-

ened by kidnap-extortion as Congress intended and not

wealthy bank employee assets as Congress did not

intend.

This Court should resolve this conflict in the cir-

cuits by holding the bank robbery statute to be the ex-

clusive charge available to the Government in a kid-

nap-extortion situation. Such a decision would repre-

sent the intent of Congress and would avoid prosecu-

tions of state kidnapping charges in Federal Court

under the guise of Hobbs Act violations.

9

2. The Court below Refused to Review the

Petitioner’s Claim that His Fifth and Six-

th Amendment Rights Were Violated by

Subtle In-Custody Interrogation in the

Absence of Counsel.

The record of the trial court reveals that the Peti-

tioner was arrested at his residence and advised of his

Miranda rights after which he requested an attorney. A

few minutes later he was again advised of his rights,

and he again requested an attorney. During the ride to

jail with two FBI agents, certain conversations took

place which resulted in Petitioner making incriminat-

ing statements which were admitted at trial over the

objection that the statements were gained by trickery

and were not voluntary. It was uncontroverted that:

they were made in the absence of counsel.

The District Court heard testimony of the Petition-

er at the suppression hearing which detailed the con-

versations of the FBI agents concerning veiled threats

to arrest his girl friend and comments on what a

“sloppy jou” the extortion had been. In response the FBI

agents stated that no questions had been asked, and

that for no apparent reason, the defendant just started

talking. The District Court found:

“ _. in spite of the fact that (Carpenter) said

that he wanted counsel, the FBI did not ask

any question of the defendant . . . and volun-

10

tarily, without any questioning on the part of

the FBI agents, (Carpenter) made the state-

ments that he made.” (post, Appendix A)

Based upon this finding, couched exclusively in

terms of questioning, the Court below held that the

factual findings properly made by the District Court,

placed them well outside the “Brewer caldron”. The

Court was, of course, referring to this Court’s deci-

sion in Brewer v. Williams, 430 U.S. 387 (1977). Brewer in-

volved a situation like the case at bench in that counsel

had been unequivocally requested and no questions

were asked of the defendant in the absence of counsel.

A subtle form of interrogation by the arresting officer

resulted in violation of the defendant’s Fifth and Sixth

Amendment rights.

This Court has recently heard argument in Rhode

Island v. Innis (supra). The reviewing Court in Rhode

Island did not rely on the trial court’s finding that no

interrogation occurred and reversed the conviction

relying on Brewer and its teaching that interrogation

and violation of Constitutional rights can occur with-

out direct questioning. All that the District Court

found in the case at bench was that no questioning

occurred. This finding was the sole basis for the Circuit

Court's rejection of Petitioner’s claim that he was

interrogated while under arrest and in the absence of

counsel which he had requested.

11

Neither the trial court nor the Court of Appeals had

found that the Petitioner was not the victim of subtle

in-custody interrogation in the absence of counsel. All

that has been determined is that the Petitioner was not

directly questioned. The Petitioner has never asserted

that he was directly questioned. What he has con-

sistently claimed and what no Court has rejected, is

that his Fifth and Sixth Amendment rights were vio-

lated by subtle in-custody interrogation in the absence

of requested counsel.

This type of interrogation has been condemned by

this Court in Brewer.

Petitioner respectfully requests that it also be con-

demned in his case.

CONCLUSION

For the reasons stated above, it is respectfully sub-

mitted that this Petition for a writ of certiorari be

granted.

Gary Hagman

Attorney for Petitioner

12

la

CERTIFICATE OF SERVICE Kinases

This is to certify that three printed copies of the Shei iA tee Spa

ae , ik

oing petition for a writ of certiorari have been p

- the United States mail, postage pre-paid, addressed UNI pee seattle

to the Solicitor General, Department of Justice, Wash-

ington, D.C. 20530. | UNITED STATES of America,

Signed this day of April, 1980. Plaintiff-Appellee,

versus

Gary Hagman Charles Winfred CARPENTER, Jr.,

Defendant-Appellant.

No. 79-5209

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Feb. 4, 1980

Appeal from the United States District Court for the

Eastern District of Texas.

Before BROWN, TJOFLAT and FRANK M. JOHN-

SON, Jr., Circuit Judges.

2a

JOHN R. BROWN, Circuit Judge:

This appeal concerns an attempt to extort $38,000

from a federally insured bank by means of kidnapping

the son of two of the bank’s officers. For this crime,

Charles Winfred Carpenter, Jr. was convicted of vio-

lating the Hobbs Act, 18 U.S.C.A. §1951, and sen-

tenced to five years in prison. He appeals the convic-

tion, contending that (i) he did not commit a federal

crime because the attempted extortion was directed

solely at the parents of the kidnapped victim, not at the

bank, (ii) the exclusive federal remedy for the crime

was the Bank Robbery Act, 18 U.S.C.A. §2113, not the

Hobbs Act, and (iii) incriminating statements admitted

at trial were obtained in violation of the Fifth Amend-

ment. We affirm.

Jeff Austin, II], was abducted from his home on the

morning of October 18, 1978. Jeff is the son of Jeff

Austin, Jr. and Sissy Austin, the president and vice-

president, respectively, of the First National Bank of

Jacksonville, Texas. The abductor, without asking Jeff

where his parents worked, then proceeded to dial the

telephone number of the bank and to force Jeff to

attempt to speak to either or both of his parents. Jeff

spoke to Mrs. Austin and indicated that his abductors

wanted $38,000 for Jeff’s safe return. Further tele-

phone calls directed Mrs. Austin to begin a series of

steps resulting in her leaving the money at a spot near

“Love's Lookout.”

3a

The first drop off of the money was unsuccessful,

however. Yet another call was placed to Mrs. Austinin

order to arrange a second drop off for the money.

During that telephone conversation, the abductor

stated that “the bank” had interfered with the first

drop off. Mrs. Austin was directed to make sure that

bank personnel did not interfere asecond time. She was

also told to “call the bank and again have $38,000 of

money packaged in tens and twenties. . .” Mrs. Austin

complied and delivered a second package of money toa

different location, where the money was picked up by

two young boys. The boys later identified Carpenter as

the man who promised to pay them for picking up the

money.

These facts establish that the extortion was directed

at the bank and not solely at the parents. Both parents

were officers of the bank, with authority to direct the

use of bank monies. A very large amount of money was

demanded. The abductor knew without asking that

both parents worked at the bank. And statements made

over the telephone also indicated that the abductor was

looking to the bank’s assets for payment, not solely to

the assets of the parents.

Under very similar facts, the Eighth Circuit has re-

jected Carpenter's argument. United States v. Johnson, 516

F.2d 209, 214, cert. denied, 1975, 423 U.S. 859, 96 S.Ct.

112, 46 L.Ed.2d 85. Moreover, we stated in United States

v. Gupton, 5 Cir., 1974, 495 F.2d 550, that it is only

4a

necessary to show that the “extortionate behavior

[was] likely to have the natural effect of obstructing com-

merce.” Id. at 551 (emphasis supplied). The abduction

and extortionate telephone calls in this case were cer-

tainly likely to cause the bank’s assets to be drawn upon.

And in fact the bank’s assets, not those of the parents,

were used. There was certainly adequate evidence

from which a jury could have concluded that the ex-

tortion was directed against the bank. Glasser v. United

States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680;

United States v. Malatesta, 5 Cir., 1979, 590 F.2d 1379 (en

banc). We therefore reject Carpenter’s first point of

error.

II.

The contention that the Bank Robbery Act is the ex-

clusive federal remedy for cases involving extortionon

banks would have been a more substantial argument

prior to the Supreme Court’s recent decision in United

States v. Culbert, 1978, 435 U.S. 371, 98 S.Ct. 1112, 55

L.Ed.2d 349.1

In Culbert, the defendant was convicted in the District

Court of attempted bank robbery under 18 U.S.C.A.

§2113(a) and of extortion under the Hobbs Act. As in

Carpenter's case, the Culbert defendant had used tele-

1 There are no Double Jeopardy concerns here, nor does Car-

penter argue any. Carpenter was convicted and sentenced under

only one statute — the Hobbs Act. Thus, United States v. Golay, 8

Cir., 1977, 560 F.2d 866, 869-70, and United States v. Beck, 6 Cir.,

1975, 511 F.2d 997, 999-1000, are distinguishable.

5a

phoned threats in an attempt to force a bank officer to

leave a large amount of bank money at a specified loca-

tion. On appeal to the Ninth Circuit, the Bank Rob-

bery Act conviction was abandoned by the Govern-

ment.2 Consequently, the Supreme Court considered

the issue of whether the Hobbs Act covered bank ex-

tortion. 435 U.S. at 372 n. 1, 98 S.Ct. at 1113 n. 1, 55

L.Ed.2d at 351 n. 1.

In a broadly worded opinion, the Hobbs Act convic-

tion was sustained. The Culbert opinion focused ona re-

jection of the Ninth Circuit’s theory that the Hobbs Act

was limited to “racketeering” crime. But an examina-

tion of the precise facts and issue in Culbert makes clear

that Culbert's holding was that the Hobbs Act may be

used to prosecute attempted bank extortions. Thus, on

the basis of Culbert's holding, Carpenter’s second point

of error is easily rejected.

2 United States v. Culbert, 9 Cir., 1977, 548 F.2d 1355, 1356-57. The

Ninth Circuit relied not only on the Government's abandonment

but also upon the argument that attempted bank extortion did not

fulfill 18 U.S.C.A. §2113(a)’s requirement that the money be

taken “from the person or presence of” the bank officer.

The Government apparently withdrew its concession by the

time that the case reached the Supreme Court, 435 U.S. at 372 n.

1,985S.Ct. at 1113 n. 1,55 L.Ed.2d at 351 n. 1, and attempted to re-

argue the issue after the Supreme Court remanded the casetothe

Ninth Circuit. There, the Ninth Circuit adhered to its dismissal of

the Bank Robbery Act count, however, “for the reasons set forth

in our first opinion . . .” United States v. Culbert, 1978, 581 F.2d799.

3 While we rely on Culbert, yet another consideration supports

our disposition of this issue. For even assuming (i) Culbert inappli-

cable and (ii) that the Bank Robbery Act unambiguously covered

the crime of bank extortion, indictment under the more lenient

6a

Hobbs Act was an acceptable exercise of prosecutorial discretion.

Indeed, a long line of cases has held that a ole an act violates more

than one criminal statute, the Government can prosecute under

even the harshest statute which proscribes the act. E.g., United

States v. Beacon Brass Co., 1952, 344 U.S. 43, 46, 73 S.Ct. 77, 79, 97

L.Ed. 61, 65; United States v. Carter, 5 Cir., 1976, 526 F.2d 1276, 1277-

78; United States v. Smith, § Cir., 1975, 523 F.2d 771, 780 (identical

felony and misdemeanor statutes involved); United States v. Chak-

makis, 5 Cir., 1971, 449 F.2d 315, 316 (identical felony and misde-

meanor statutes involved); Ehrlich v. United States, 5 Cir., 1956, 238

F.2d 481, 485.

Nor is it significant that the identical facts might prove both a

Hobbs Act and a Bank Robbery Act violation. United States v. Smith,

supra; United States v. Chakmakis, supra. This is not a Blockburger v. Unit-

ed States, 1932, 284 U.S, 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306,

309, situation involving cumulative punishment, or even dual

prosecution, under the two statutes. The legisiative history of the

two statutes gives no indication of whether one statute or the

other is to be exclusive with respect to bank extortion. See United

States v. Culbert, 9 Cir., 1977, 548 F.2d 1355, 1359 (Carter, J., dis-

senting), rev'd, 435 U.S. 371, 98 S.Ct. 1112, 55 L.Ed.2d 349; United

States v. Marx, 10 Cir., 485 F.2d 1179, 1182, cert. denied, 1973, 416

U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764. Where this is the case, the

recent Supreme Court case of United States v. Batchelder, 1979,

U.S. ___, 99 S.Ct. 2198, 60 L.Ed.2d 755, permits prosecution

under even the statute with the greater penalty.

In Batchelder, two separate provisions of the same Act of Con-

gress | hy aac felons from receiving firearms. One provision

carried a five-year maximum, the other a two-year maximum sen-

tence. The Court held that the Government was free to prose-

cute agg the more punitive statute. In reaching that result, it

stated:

Nor can [one statute] be interpreted as implicitly repeal-

ing [the other] whenever a defendant's conduct might

violate both. .. . for it is “not enough to show that the

two statutes produce differing results when applied to

the same factual situation.” . . . Rather, the legislative intent to

repeal must be manifest in the “ ‘positive repugnancy between the pro-

Visions, eee

Id. at ____, 99 S.Ct. at 2203, 60 L.Ed.2d at 763 (citations omitted)

(emphasis supplied). Thus Batchelder certainly allows the Govern-

ment to choose the equally lenient or more lenient Hobbs Act

when prosecuting bank extortions such as Carpenter’s. See United

States v. Brown, 9 Cir., 1979, 602 F.2d 909 (applying Batchelder to a sit-

uation involving 18 U.S.C.A. §2113(a)).

7a

Ill.

Carpenter lastly contests the admission of certain in-

criminating statements which he made shortly after his

arrest. In so doing, he attempts to immerse us in a cal-

dron of questions concerning the Fifth Amendment,

which has been percolating in the lower courts since

Brewer.4 Factual findings properly made by the District

Court place us well outside this caldron, however. In-

stead, we rely upon other long-standing and unim-

peached precedent in rejecting Carpenter’s last point of

error.

Carpenter made a number of incriminating state-

ments soon after his arrest by FBI agents Kieny and

Meese, on the evening of October 18, 1978.5 At the

4 Brewer v. Williams, 1977, 430 U.S. 387,97 S.Ct. 1232, 51 L.Ed.2d

424. For indications of the content of the caldron, see: Stanley v.

Wainwright, 5 Cir., 1979, 604 F.2d 379, 382; United States v. Boyce, 9

Cir., 1979, 594 F.2d 1246, 1250-51; United States v. McCain, 5 Cir.,

1977, 556 F.2d 253; United States v. Jordan, 5 Cir., 1977, 557 F.2d

1081, 1083-86. See generally, Kamisar, Brewer v. Williams, Messiah, and

Miranda: What Is “Interrogation”? When Does It Matter?, 67 Geo.L.J. 1

(1979). One case involving facts similar to those alleged by Car-

nter (but rejected by the District Court) is under consideration

“ the Supreme Court at present. Rhode Island v. Innis, R.1.,391 A.2d

1158, cert. granted, 1978, 440 U.S. 934, 99 S.Ct. 1277, 59 L.Ed.2d

492.

5 The statements in question were certainly not harmless be-

yond a reasonable doubt. United States v. Stewart, 5 Cir., 1978, 576

F.2d 50, 55-56. It is uncontested that Carpenter stated that his

girlfriend was not involved in “this matter” and that he had pur-

posely quarreled with her in order to pet her away from Love's

Lookout (where the money was first left by Mrs. Austin). Cf. Unit-

ed States v. Robertson, 5 Cir., 1978, 582 F.2d 1356 (en banc) (incrimi-

nating statements made by defendants attempting to prevent

8a

scene of the arrest, the agents advised Carpenter of his

Miranda® rights, both orally and in writing. After each

warning, Carpenter indicated that he wanted to con-

sult an attorney before making a statement. Shortly

thereafter, the two agents set out with Carpenter for

the local FBI office. The twenty-minute automobile

ride was interrupted once by a stop at a restaurant in

order to get a soft drink for Carpenter. During the

automobile trip, Carpenter made the incriminating

statements admitted at trial and challenged here.

Both agents testified that during the trip they

engaged in sporadic conversation between themselves

concerning “everyday” matters, but at no point spoke

about the Carpenter case or any other FBI matter. Both

agents also testified that the only question asked Car-

penter was whether he wanted a soft drink. Carpen-

ter’s statements came during “some long periods of

silence, at which Mr. Carpenter apparently felt like he

had to say something, and he did.”

The defendant’s version was quite different. Car-

penter essentially testified that the FBI agents en-

gaged ina form of subtle interrogation during the auto-

mobile trip, similar to but not so dramatic as the “Chris-

their wives from being charged by the police.) He further stated,

“A man does strange things with se kinds of [financial]

pressures.” And inthe presence of one FBI agent, Carpenter spoke

of his financial problems and stated that he wasn’t in charge of

“this thing”, but instead that he took all of his orders over the tele-

phone.

6 Miranda v. Arizona, 1966, 384 U.S. 436, 80 S.Ct. 1602, 16

L.Ed.2d 694.

9a

tian burial” speech of Police Officer Leaming in Brewer.

Carpenter testified that the agents made several state-

ments about the extortion, including remarks that, “It

sure was a sloppy job,” that the agents couldn’t under-

stand how his girlfriend got involved, and that an-

other case which the agents were investigating was a

much more “professional job.” The agents, however,

on cross-examination, denied making any such state-

ments.’

After hearing both versions, the Trial Judge per-

mitted the agents to testify before the jury concerning

Carpenter’s statement. The Judge found that “in spite

of the fact that [Carpenter] said that he wanted

counsel, the FBI did not ask any question of the defend-

ant ... and voluntarily, without any questioning on

the part of the FBI agents, [Carpenter] made the state-

ments that he made.” While this finding speaks in

terms of “questioning,” it is truly a finding — when

read in context with the rest of the record — that the

FBI agents neither made Brewer-type “statements” nor

posed “questions” as such. The Trial Judge was cer-

tainly permitted to credit only the testimony of the FBI

agents. The Judge’s finding is not clearly erroneous.

We have frequently facted the situation in which a

defendant invokes his Miranda rights and then, with-

7 The only, slight qualification is that one agent, Mr. Kieny,

stated that he did not remember discussing another, more “pro-

fessional” bank theft. Thus Agent Kieny did not flatly state that

the subject was not in fact discussed.

10a

out further accusatory statements or questioning by

the authorities, initiates astatement which turns out to

be incriminating. Such spontaneous, unprovoked

statements do not violate the principles of Miranda,

simply because the requisite element of Government

“interrogation” is lacking. Consequently, we have uni-

formly upheld the admission of such statements. E.G.,

United States v. Rieves, 5 Cir., 1978, 584 F.2d 740, 743-44,

745-46; United States v. Savell, 5 Cir., 1977, 546 F.2d 43,

45-46; Pilcher v. Estelle, 5 Cir., 1976, 528 F.2d 623, 625;

United States v. Hopkins, 5 Cir., 1970, 433 F.2d 1041, cert.

denied, 1971, 401 U.S. 1013, 91 $.Ct. 1252, 28 L.Ed.2d

550; Sellers v. Smith, 5 Cir., 1969, 412 F.2d 1002, 1005. See

also Miranda v. Arizona, supra, 384 U.S. at 478, 86 S.Ct. at

1630, 16 L.Ed.2d at 726 (“volunteered statements of

any kind are not barred by the Fifth Amendment”);

United States v. Cobbs, 3 Cir., 481 F.2d 196, 200-01, cert. de-

nied, 1973, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224;

Cannistraci v. Smith, S.D.N.Y., 1979, 470 F.Supp. 586,

590-92. We therefore escape the Brewer caldron that

Carpenter would place us in, and reject his final point of

error.

AFFIRMED.

lla

APPENDIX B

JUDGMENT OF THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 79-5209

Summary Calendar

D.C. Docket No. Ty-78-41-CR

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES WINFRED CARPENTER, JR.,

Defendant-Appellant.

Appeal from the United States District Court for the

Eastern District of Texas

February 4, 1980

Before BROWN, TJOFLAT and FRANK M. JOHN-

SON, JR., Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for

12a

the Eastern District of Texas, and was taken under sub-

mission by the Court upon the record and briefs on file,

pursuant to Rule 18;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the convic-

tion of the said District Court in this cause be, and the

same is hereby, affirmed.

ISSUED AS MANDATE:

APPENDIX C

DENIAL OF REHEARING BY THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 79-5209

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES WINFRED CARPENTER, JR.,

Defendant-Appellant.

13a

Appeal from the United States District Court for the

Eastern District of Texas

ON PETITION FOR REHEARING

March 7, 1980

Before BROWN, TJOFLAT, and FRANK M. JOHN-

SON, JR., Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby denied.

ENTERED FOR THE COURT:

Is) FRANK M. JOHNSON, JR.

United States Circuit Judge

14a

APPENDIX D

THE BANK ROBBERY STATUTE

§2113. Bank robbery and incidental crimes

(a) Whoever, by force and violence, or by intimida-

tion, takes, or attempts to take, from the person or

presence of another any property or money or any

other thing of value belonging to, or in the care, cus-

tody, control, management, or possession of, any bank,

credit union, or any savings and loan association; or

Whoever enters or attempts to enter any bank, credit

union, or any savings and loan association, or any

building used in whole or in part as a bank, credit union,

or as a savings and loan association, with intent tocom-

mit in such bank, credit union, or in such savings and

loan association, or building, or part thereof, so used,

any felony affecting such bank, credit union, or such

savings and loan association and in violation of any

statute of the United States, or any larceny—

Shall be fined not more than $5,000 or imprisoned

not more than twenty years, or both.

(b) Whoever takes and carries away, with intent to

steal or purloin, any property or money or any other

thing of value exceeding $100 or belonging to, or inthe

care, custody, control, management, or possession of

15a

any bank, credit union, or any savings and loan asso-

ciation, shall be fined not more than $5,000 or im-

prisoned not more than ten years, or both; or

Whoever takes and carries away, with intent to steal

or purloin, any property or money or any other thing of

value not exceeding $100 belonging to, or in the care,

custody, control, management, or possession of any

bank, credit union, or any savings and loan associa-

tion, shall be fined not more than $1,000 or imprison-

ed not more than one year, or both.

(c) Whoever receives, possesses, conceals, stores,

barters, sells, or disposes of, any property or money or

other thing of value knowing the same to have been

taken from a bank, credit union, or a savings and loan

association, in violation of subsection (b) of this sec-

tion shall be subject to the punishment provided by said

subsection (b) for the taker.

(d) Whoever, in committing, or in attempting to

commit, any offense defined in subsections (a) and (b)

of this section, assaults any person, or puts in jeopardy

the life of any person by the use of a dangerous weap-

on or device, shall be fined not more than $10,000 or

imprisoned not more than twenty-five years, or both.

(e) Whoever, in committing any offense defined in

this section, or in avoiding or attempting to avoid

apprehension for the commission of such offense, or in

freeing himself or attempting to free himself from

arrest or confinement for such offense, kills any per-

16a

son, or forces any person to accompany him without

the consent of such person, shall be imprisoned not less

than ten years, or punished by death if the verdict of

the jury shall so direct.

(f) As used in this section the term “bank” means

any member bank of the Federal Reserve System, and

any bank, banking association, trust company, savings

bank, or other banking institution organized or oper-

ating under the laws of the United States, and any bank

the deposits of which are insured by the Federal De-

posit Insurance Corporation.

(g) As used in this section the term “savings and

loan association” means any Federal savings and loan

association and any “insured institution” as defined in

section 401 of the National Housing Act, as amended,

and any “Federal credit union” as defined in section 2 of

the Federal Credit Union Act.

(h) As used in this section the term “credit union”

means any Federal credit union and any State-charter-

ed credit union the accounts of which are insured by

the Administrator of the National Credit Union Ad-

ministration.

As amended Aug. 3, 1950, c. 516, §1, 64 Stat. 394; Apr.

8, 1952, c. 164, 66 Stat. 46; Sept. 22, 1959, Pub.L. 86-

354, §2, 73 Stat. 639; Oct. 19, 1970, Pub.L. 91-468, §8,

84 Stat. 1017.

17a

APPENDIX E

THE HOBBS ACT

§1951. Interference with commerce by threats or

violence

(a) Whoever in any way or degree obstructs, de-

lays, or affects commerce or the movement of any

article or commodity in commerce, by robbery or ex-

tortion or attempts or conspires so to do, or commits or

threatens physical violence to any person or property

in furtherance of a plan or purpose to do anything in

violation of this section shall be fined not more than

$10,000 or imprisoned not more than twenty years, or

both.

(b) As used in this section—

(1) The term “robbery” means the unlaw-

ful taking or obtaining of personal property

from the person or in the presence of an-

other, against his will, by means of actual or

threatened force, or violence, or fear of in-

jury, immediate or future, to his person or

property, or property in his custody or posses-

sion, or the person or property of a relative or

member of his family or of anyone in his com-

pany at the time of the taking or obtaining.

18a

(2) The term “extortion” means the ob-

taining of property from another, with his

consent, induced by wrongful use of actual or

threatened force, violence, or fear, or under

color of official right.

(3) The term “commerce” means com-

merce within the District of Columbia, or any

Territory or Possession of the United States;

all commerce between any point in a State,

Territory, Possession, or the District of

Columbia and any point outside thereof; all

commerce between points within the same

State through any place outside such State;

and all other commerce over which the Unit-

ed States has jurisdiction.

(c) This section shall not be construed to repeal,

modify or affect section 17 of Title 15, sections 52, 101-

115, 151-166 of Title 29 or sections 151-188 of Title 45.