William Joseph Coughlan v. United States

391 F.2d 371 William Joseph COUGHLAN, Appellant, v. UNITED STATES of America, Appellee. No. 21626. United States Court of Appeals Ninth Circuit. Feb. 20, 1968. Bernard Winsberg, Los Angeles, Cal. (argued), for appellant. Anthony Glassman, Asst. U.S. Atty. (argued), William M. Byrne, Jr., U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Chief, Criminal Division, Roger Browning, Asst. U.S. Atty., Los Angeles, Cal., for appellee. Before BARNES and HAMLEY, Circuit Judges, and McNICHOLS, District judge. PER CURIAM: 1 Appellant was convicted of aiding and abetting in the robbery of a federally insured bank. 1 2 Trial was to the district judge, jury having been properly waived. The conviction depended on an oral confession, evidence of which was received at the trial. The oral statements involved were taken by police officers who interviewed the appellant in a jail interview room. The court held a full evidentiary hearing to determine the voluntariness of the extra-judicial admissions. Suffice to say, the record makes it abundantly clear that the accused was fully and fairly advised of and understood his constitutional rights, including the right to have his appointed attorney present,…

(dissenting):

The practice which the majority lightly disapproves without penalty in this case, or indicated sanctions for the future, I would condemn now as reversible error. In my opinion, Government interrogation of a person in custody pending trial for a federal offense, with knowledge that the accused has retained or appointed counsel to assist him in that criminal matter, which counsel has not been notified of the time and place of the interrogation and is not present, renders any statement obtained inadmissible in evidence against the accused, regardless of any advice the Government has given to the accused as to his rights, or any purported waiver given by the accused without first consulting with his counsel concerning such interrogation.

I first state the factual context in which this question has arisen. Appellant Coughlan, then nineteen years of age, and indigent, was arrested on September 12, 1966. On that day he was *373 interviewed at the Los Angeles Police Department by Irvin B. Wells, III, an agent of the Federal Bureau of Investigation. At the outset of the interview Wells advised Coughlan of his rights, substantially as outlined in Miranda v. State of Arizona,…

Appellant was convicted of aiding and abetting in the robbery of a federally insured bank.

Trial was to the district judge, jury having been properly waived. The conviction depended on an oral confession, evidence of which was received at the trial. The oral statements involved were taken by police officers who interviewed the appellant in a jail interview room. The court held a full evidentiary hearing to determine the voluntariness of the extra-judicial admissions. Suffice to say, the record makes it abundant *372 ly clear that the accused was fully and fairly advised of and understood his constitutional rights, including the right to have his appointed attorney present, and with that understanding he waived those rights and voluntarily gave the incriminating statements to police officers. The trial court so found and this finding is thoroughly supported by competent evidence.

At the time the confession was obtained, the appellant was represented by court-appointed counsel. This fact was well known to the officers who interrogated the accused. No notice was given by the officers to defendant’s counsel of the intended interviews and he was not present when the statement was…