John Joseph Walsh v. United States

371 F.2d 135 John Joseph WALSH, Appellant, v. UNITED STATES of America, Appellee. No. 19950. United States Court of Appeals Ninth Circuit. Jan. 11, 1967, Rehearing Denied Feb. 13, 1967. Paul A. Renne, San Francisco, Cal., for appellant. Manuel L. Real U.S. Atty., John K. Van de Kamp, Asst. U.S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U.S. Atty., Asst. Chief, Crim. Div., Robert J. Timlin, Asst. U.S. Atty., for appellee. Before MERRILL, KOELSCH and BROWNING, Circuit Judges. PER CURIAM: 1 Appellant was charged with violating the Dyer Act, 18 U.S.C. 2312, by trasporting an automobile from New York City to Los Angeles, knowing it to have been stolen. The uncontradicted evidence established that appellant rented the vehicle from a car rental agency in New York City and drove it to Los Angeles where he was arrested. The sole issue was whether appellant acted with criminal intent. 2 Appellant's principal contentions on appeal relate to admission in evidence of incriminating statements made in absence of counsel. Appellant had been advised of his right to remain silent and of his right to consult counsel. Under the circumstances of this case, for the reasons set forth in Payne v.…

Appellant was charged with violating the Dyer Act, 18 U.S.C. § 2312 , by transporting an automobile from New York City to Los Angeles, knowing it to have been stolen. The uncontradicted evidence established that appellant rented the vehicle from a car rental agency in New York City and drove it to Los An-geles where he was arrested. The sole issue was whether appellant acted with criminal intent.

Appellant’s principal contentions on appeal relate to admission in evidence of incriminating statements made in absence of counsel. Appellant had been advised of his right to remain silent and of his right to consult counsel. Under the circumstances of this case, for the reasons set forth in Payne v. United States, 340 F.2d 748 (9th Cir. 1965), the statements were not rendered inadmissible by Escobedo v. State of Illinois, 378 U.S. 478 , 84 S.Ct. 1758 , 12 L.Ed.2d 977 (1964). While the warnings given were insufficient to meet the standards of Miranda v. State of Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), trial here commenced September 1, 1964, and such standards are not to be retroactively applied. Johnson v. State of New Jersey, 384 U.S. 719 , 86 S.Ct. 1772 , 16…

(dissenting) :

As the court notes, the sole issue was whether appellant acted with criminal intent. The testimony was brief, requiring less than one trial-day. The case was submitted to the jury at 11:55 a. m. At 3:13 p. m. the jury requested additional instructions on intent. At 3:31 p. m., at the request of defense counsel, the jury was recalled and was further instructed, at length, on this issue. One of the jurors (by his questions) indicated partic *137 ular doubt as to the sufficiency of the evidence. At 4:45 p. m. the jury asked for a reading of the testimony of a key witness on intent.

At 5:45 p. m. the jury sent the court a note reading:

The court summoned the jury, and the following transpired:

*138 At 9:20 p. m. the jury returned a verdict of guilty.

The court was not required to accept at once the jury’s statement that it could not agree, but could insist that the jury deliberate further. See, e. g., DeVault v. United States, 338 F.2d 179, 182-183 (10th Cir. 1964); Mills v. Tins-ley, 314 F.2d 311, 312 (10th Cir. 1963); 5 Wharton, Criminal Law & Procedure 300 (Anderson ed. 1957).

The difficulty with the court’s response was that it implied that the jury must reach…