UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Fahy, McGowan and Tamm, Circuit Judges. Fahy, Circuit Judge (dissenting).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN
Appellant and another were indicted under 18 U.S.C. § 500 which is addressed to various fraudulent transactions in respect of postal money orders. The co-defendant was charged with falsely altering the face amounts of four such orders; and appellant, together with the co-defendant, was charged with falsely uttering such orders at four different liquor stores in the District of Columbia. Reversal of appellant's conviction is sought here on two grounds deriving from the admission in evidence of both oral and written confessions. One such ground is an asserted deprivation of a Sixth Amendment right to counsel; and the other is founded in Rule 5(a), FED.R.CRIM.P. It is the latter which we think merits examination in some detail hereinafter. *fn1 Our conclusion is that, on this record, the conviction may stand. I
The Government's case was initially developed by testimony showing that the four money orders had been issued on April 25, 1964, in the face amount of $2 each. When presented at the liquor stores, alteration had been effected by the insertion of a digit before the "2". The sender was shown to be a "Mrs. Rosia Lorenzo," and the recipient was listed as "Angelo C. Lorenzo." Each order had been endorsed in the latter name, the utteror having introduced himself as Angelo Lorenzo and having used as identification a Maryland driver's license issued to Angelo Lorenzo.
The four liquor store owners testified. Three felt they could not positively identify anyone and could not be sure whether the forger was in the courtroom. Only one was completely positive in his courtroom identification of appellant as the man who had cashed the orders. This witness testified on cross-examination that a few days after the discovery of the forgery a postal inspector had visited his store and exhibited to him a "display" of pictures. *fn2
At this point in the trial the jury was dismissed and the prosecution called Postal Inspector Ohrvall. He testified that the forged money orders came to his attention around April 29, and that on July 9, in company with Inspector Diserod, he went to Baltimore to see appellant who was in the custody of the Maryland authorities on another criminal charge. Appellant was brought to an office-like room in the jail to meet his visitors. Ohrvall identified himself and his companion, stated the purpose of their call to be that of inquiring about forged money orders, and produced the orders. *fn3 Ohrvall's testimony was that, upon being shown the orders, appellant immediately said that he had passed them and that the endorsements were his. Ohrvall thereafter asked appellant if he would "give a written statement" to the same effect, and appellant said he would. This statement was, so it is said, written by appellant in his own hand in a half-hour or less.
With this testimony taken in the hearing out of the presence of the jury, the prosecutor suggested to the court that defense counsel should indicate the basis of his objections to admissibility in order that relevant evidence might be introduced. Counsel replied that he was going to object on voluntariness grounds in that the admissions were coerced by reason of promises to see to it that appellant would be sent to the federal facilities at Lexington, Kentucky, and also because of appellant's incompetency in terms of his physical or mental condition. Counsel further stated that "these statements were made before he was formally charged with any crime, before he was indicted, while he was incarcerated, had been incarcerated for about ten days on another charge, and as a result thereof, he was under the Mallory *fn4 logic, and so forth. These were the fruit of an illegal detainment in so far as these charges were concerned and a speedy trial did not result therefrom and, therefore, they cannot be produced for that."
The taking of testimony with the jury absent was then resumed. Upon the completion of the examination of Inspector Ohrvall, the defense called a psychiatrist from St. Elizabeths to support the claim of incompetency. Appellant then took the stand and testified at length. His direct examination was concerned with matters bearing upon the alleged coercion by promises and the asserted incompetency. In the course of his testimony, he did say that he had agreed to talk with Inspector Ohrvall on the occasion of the latter's visit to the Baltimore jail, that he had at that time admitted passing the money orders, and that he had complied with a request to write down that admission. He stated from the stand that these pre-trial admissions were true.
With the evidence on admissibility in, the judge asked defense counsel to state, in the light of that evidence, his precise objections to admissibility. Counsel's response was:
Your Honor, counsel for the Government has quite clearly defined the two bases upon which we request that the confession be suppressed. Number one, that it was involuntary because a promise was given and other external influences were working upon the mind of the Defendant at the time that he gave these statements; and secondly, that he was suffering from a mental defect or a mental illness at the time.
The court then ruled that the evidence did not establish these objections. *fn5 Before calling the jury back in, however, the court asked defense counsel if he were abandoning his Mallory contentions. Counsel's first response was that he was not abandoning, but merely relying upon what he considered to be his strongest points. Pressed further by the court, counsel closed the colloquy by saying that he was still resting upon Mallory because, as he put it, the admissions were made in July and appellant was not indicted until September or November. *fn6 The judge then ruled that the evidence before him did not establish a violation of Rule 5(a); and he stated again his adverse rulings on the objections of incompetency and coercion. He concluded by noting that the issue of involuntariness would in due course be presented to, and passed upon by, the jury.
After the trial resumed before the jury, defense counsel notified the court that he had decided to defend upon the ground of insanity alone, and that he did not want the court to instruct the jury that it could consider the question of the voluntariness of the admissions. Counsel expressly reaffirmed this position after the evidence was all in and instructions were being discussed. He also told the jury in his opening statement, made after the Government had rested, that the defense was insanity, and, in his closing argument, he said:
In my opening statement earlier, yesterday, as counsel for the Government suggested, we conceded, based upon the overwhelming evidence, that the Defendant LaShine did commit the alleged crimes. I didn't come out and say this. I suggested this. At this time we will concede it. He did commit these crimes. But your duty is to consider the defense and the defense that we have raised is insanity. II
As indicated earlier, we find no warrant in the record for overturning the trial court's findings and conclusions with respect to the central objection of voluntariness, in terms of both coercion by promise and competency, initially lodged against the admissions, if indeed that issue was still in the case after the decision by the defense not to pursue it before the jury. We also put to one side the not insubstantial question of whether the essential purposes of Rule 5(a) are irretrievably compromised when there is a ...