United States v. Nelson Cornelious Drummond

WATERMAN, Circuit Judge

(dissenting) :

I dissent.

The defendant in the present case was tried and convicted in the summer of 1963 prior to the decisions of the United States Supreme Court in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). His appeal from the conviction was pending when these cases were decided. In the spring of 1965 a division of this court, consisting of the three judges who dissent from the affirmance of the conviction, heard oral argument and agreed that, on the present record made before these two- eases were decided, the teachings of Massiah and Escobedo precluded an affirmance because appellant had been deprived of rights rightfully his under the U. S. Constitution. A panel opinion, which I authored, never was operative because of the decision of the full court to consider the case in banc.

Now a majority of the full court, sitting in banc, affirm the defendant’s conviction. After careful deliberation and respectful consideration of my brothers’ beliefs, I have concluded that the panel result reached several months ago remains the only result that can be reconciled with the opinion of the Supreme Court in Escobedo. No constructive purpose would be served by appending my lengthy opinion as a dissent to the majority opinion of the court in banc. Nevertheless, it is important to restate in smaller fashion what was said several months ago on the issue of the protection afforded Drummond by the assistance of counsel clause of the Sixth Amendment during the interrogation that took place at the Federal House of Detention on the evening of September 29, 1962, and on the further issue whether Drummond’s conduct during this interrogation “waived” this protection.

We of the erstwhile Drummond panel unanimously concluded then, and we continue to believe, that Drummond was *157entitled to the assistance of counsel during the interrogation by agents Palguta and Gamber on the evening of September 29, when he did not, in fact, enjoy that assistance. Furthermore, we recognized then, and do now, that Drummond requested permission of agents and employees of the Government to telephone a lawyer on at least three occasions, and that his requests were each time refused: first, during the initial interview in the early morning of September 29;1 second, while he was at the Federal Courthouse later that morning awaiting his appearance before the U. S. Commissioner for his initial examination; and third, after he had been locked in the Federal House of Detention after that appearance. We also noted that when, on the evening of September 29, the F. B. I. agents were told by the defendant that he had been denied the opportunity earlier in the day to obtain counsel, they shrugged off any responsibility to assist him.2 Finally, we recognized then, and we do now, that after Drummond’s requests to reach counsel had been thrice denied he made several damaging admissions, and signed a written version of the inculpatory statements he had made the night before. And we went on to characterize Drummond’s conduct at this juncture as “patently voluntary.” We could not, however, find an easy equation between Drummond’s voluntary admissions on the evening of September 29 and a waiver by him of his constitutionally protected right to counsel at that time, inasmuch as he continued to request access to counsel and his requests were repeatedly denied. We remain of the same belief.

The majority’s opinion, insofar as it relates to the interrogation on the evening of September 29, is expressed in terms of waiver, but in actuality it rests on an extremely restrictive reading of the Supreme Court opinion in Escobedo. This restrictive approach is most clearly disclosed by Judge Kaufman’s statement that “[t]he Fifth and Sixth Amendments may be designed to protect quite different values but in concrete situations they may often provide precisely the same protection * * I do not now deny that in some cases the protection afforded an accused by the right to counsel may be no broader than that afforded by the privilege against self-incrimination; that is, the right to keep silent. But the majority errs when they suggest that in the present case the protection conferred by the Sixth Amendment as explicated in Escobedo was identical with that conferred by the Fifth Amendment.

If Escobedo changed the law regulating the admissibility of the out-of-court inculpatory statements of an accused, the decision must mean that, at least in some instances of police interrogation, an accused has a right not to be questioned in the absence of counsel in addition to a right to remain silent, and that police respect for the former right is a precondition of admissibility at trial of inculpatory statements. Compare Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) with Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958). See Friendly The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929, 949 (1965). And one such instance surely must be when the *158accused repeatedly requests an opportunity to consult with counsel; for the very fact of repeated requests suggests that the accused, without assistance, is unable to preserve his right to be silent in the face of the sophisticated interrogation techniques of the police.

It has, of course, been claimed that the Sixth Amendment as explicated by the decision of the Court in Escobedo confers no such “extra” right to counsel if the interrogators effectively warn the accused of his right to remain silent.3 In the present case the F. B. I. did warn the accused that he had both a right to remain silent and a right to seek the advice of counsel before they began to question him on the evening of September 29. It might therefore be argued that after Drummond had been warned his only remaining protection was that afforded by the privilege against self-incrimination; that is, the right to remain silent. This argument might be persuasive in the case of a reasonably intelligent accused who is adequately warned he has the right to remain silent and to seek the advice of counsel and who, unlike Drummond, makes no effort to implement that latter right. The same argument is not persuasive in the case of a reasonably intelligent accused who is adequately warned he has the right to remain silent and to seek the advice of counsel, and who repeatedly requests, as Drummond did, that he be allowed to consult with counsel in an effort to avail himself of that right. To say that in the latter case the Sixth Amendment confers on the accused no more protection than does the Fifth Amendment is to deny that Escobedo has any relevance in the very case in which an accused vigorously seeks counsel and is rebuffed repeatedly. If Escobedo does not apply in such a case one may well ask if it has any relevance at all. I would hold that when prior to a police, interrogation, an accused vigorously seeks the opportunity to consult with counsel, Escobedo requires that he be afforded the opportunity to do so. I would hold further that the present case is just such a case. To this extent, at least, Escobedo must be read as overruling Crooker v. State of California, supra. The scope of the right to counsel may still be uncertain, but to suggest that the Sixth Amendment as explicated by Escobedo did not confer on Drummond the right not to be questioned in the absence of counsel when he requested counsel, in addition to the right to remain silent, seems to me “particularly disingenuous.”

I thus come to the question of whether Drummond waived the “extra” right afforded by the Sixth Amendment, as later explicated by Escobedo, not to be questioned in the absence of counsel. Two slightly different grounds to support its finding of waiver appear to have been advanced by the majority. Neither is persuasive.

First, it is argued that because Drummond made several voluntary inculpatory statements to the F. B. I. agents immediately after he was arrested, and voluntarily disclosed other inculpatory facts during the preliminary interrogation at F. B. I. headquarters before he for the first time requested counsel, these voluntary utterances waived any Sixth Amendment right he might have had. Of course this argument ignores the critical fact that all of these early voluntary admissions were made prior to the first of Drummond’s repeated requests for an opportunity to contact counsel and, as I have previously stated, it was these repeated requests that gave Drummond the Sixth Amendment right not to be questioned in the absence of counsel. Drummond’s admissions prior to the time of his repeated requests may well be admissible against him at his trial, but the fact that he said them can hardly constitute an advance waiver of a right that, on the facts of this case, was not at that time available to him and which arose after the admissions had been made.

Second, it is argued that Drummond voluntarily made later inculpatory state*159ments during the interrogation on the evening of September 29 and that these admissions constitute a waiver of any Sixth Amendment right he had. The majority tells us that if Drummond wished to avail himself of the protection afforded by the Sixth Amendment he should have refused to talk to agents Gamber and Palguta. The short answer to this position is that, as we have seen, the Sixth Amendment afforded Drummond in addition to his Fifth Amendment right to remain silent the further right not to be questioned in the absence of counsel. The court surely cannot justify its assumption that Drummond in talking and waiving the former right intended to waive the latter as well. And, as I shall subsequently point out, if the Sixth Amendment right not to be questioned in the absence of counsel is to be given any real meaning, the utterance of inculpatory admissions under those circumstances and in that setting cannot be a waiver of that right as a matter of law.

The portion of the majority’s opinion that suggests that Drummond intended to waive his Sixth Amendment protection during the interrogation on the evening of September 29 is especially strained. When this interrogation occurred Escobedo had not been decided. Therefore, even though Drummond was warned of his “right to counsel” at the start of this interrogation it is quite unlikely that he understood this quick phrase to signify that if he pleased he was entitled at once to talk with a lawyer. One is required to give Drummond the benefit of the doubt, and to hold that he did not waive his “extra” Sixth Amendment right because he would not consciously and willingly have surrendered this right not to be questioned in the absence of counsel if he had known on the evening of September 29 what Escobedo subsequently made apparent. United States ex rel. Noia v. Fay, 300 F.2d 345, 351 (2 Cir. 1962), aff’d on other grounds, 372 U.S. 391, 83 S.Ct. 822, 9 L. Ed.2d 837 (1963). See Camley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1937). There will be time enough to consider what constitutes an intentional waiver of the right not to be questioned in the absence of counsel when we are presented with a case involving a post-Escobedo interrogation of an accused who is properly apprised that such a right is his if he chooses to exert it.

I come finally to consider whether Drummond’s utterance of inculpatory statements can be regarded as a waiver of his Sixth Amendment right as a matter of law. I maintain that, demonstrably, they cannot be so regarded. The established rationale of the constitutional right to counsel is that this “extra” constitutional protection is sometimes essential if the accused’s constitutional right to silence is to have meaning. One who, after repeatedly requesting access to counsel and repeatedly finding that no attention is paid to his requests, confesses, may have effectively waived his constitutional right to maintain silence but surely has not waived his extra right to have counsel’s advice before breaking silence. To hold here that, because he talked, Drummond, regardless of his expressed wishes, waived his Sixth Amendment right is to eliminate that right altogether — and under circumstances that, clearly establish that the right is indeed a separate right, and under circumstances where the accused, being confined and under arrest, needed the protection the most. We need not now decide what would constitute an effective waiver of an accused’s right to counsel once the right has attached and the accused has taken steps to be protected', thereby. Whatever ultimately is held to. constitute waiver by an accused in such; circumstances, it is clear that if Escobedo, is to have any independent significance, the making of inculpatory statements by an accused after he has sought an opportunity to reach counsel and has been prevented from doing so cannot constitute, it.

I would reverse and remand for a new trial at which the inculpatory statements; *160elicited from Drummond during the evening interrogation of September 29, 1962 would be excluded from evidence.

Whether Drummond’s subsequent inculpatory statements should not also then be excluded will depend upon whether it should develop at that trial that they were given independently of the compulsion activated by the September 29 statements.

. The factual circumstances of Drummond’s first request for counsel are unclear. Given the present posture of this case, I agree with Judge Friendly that one must accept Drummond’s version of the facts relating to this request.

. The majority pretend that Drummond did not again ask for counsel prior to the interrogation on the evening of' September 29. I disagree. When asked whether he had an attorney Drummond told agents Palguta and Gamber that he had repeatedly sought an opportunity to contact counsel and each time he had been rebuffed. If Drummond assumed that the F. B. I. agents would allow him an opportunity to consult with counsel before they proceeded to interrogate him he certainly would have believed that his tale of frustration would be understood by the agents as a request for an opportunity to consult with counsel.

. Note: 53 Calif.L.Rev. 337, 349 (1965).