United States v. Richard A. Schmidt

573 F.2d 1057 UNITED STATES of America, Plaintiff-Appellee, v. Richard A. SCHMIDT, Defendant-Appellant. No. 77-1334. United States Court of Appeals, Ninth Circuit. Feb. 6, 1978. As Amended on Denial of Rehearing and Rehearing En Banc April 24, 1978. Thomas H. S. Brucker, Seattle, Wash., for defendant-appellant. Donald M. Currie, Asst. U. S. Atty., Tacoma, Wash., for plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington. Before CARTER and HUFSTEDLER, Circuit Judges, and SMITH, * District Judge. JAMES M. CARTER, Circuit Judge: 1 This is an appeal by Richard A. Schmidt of his conviction under a two count indictment for importation and conspiracy to import cocaine into the United States in violation of 21 U.S.C. §§ 952 and 963, respectively. Schmidt waived his right to a jury and following trial was found by the district judge to be guilty on both counts. He was sentenced to five years imprisonment on each count, the sentences to run concurrently. 2 Schmidt states three grounds upon which he contends his conviction should be reversed. First, statements made to DEA agents in Peru were allegedly improperly admitted because they…

This is an appeal by Richard A. Schmidt of his conviction under a two count indictment for importation and conspiracy to import cocaine into the United States in violation of 21 U.S.C. §§ 952 and 963, respectively. Schmidt waived his right to a jury and following trial was found by the district judge to be guilty on both counts. He was sentenced to five years imprisonment on each count, the sentences to run concurrently-

Schmidt states three grounds upon which he contends his conviction should be reversed. First, statements made to DEA agents in Peru were allegedly improperly admitted because they were the result of coercive conduct by the Peruvian government. Second, the physical evidence presented at trial is claimed to be the inadmissible product of the coerced statements. Third, the United States government is alleged to have prevented the defense from investigating the crime in Peru. None of these contentions is meritorious. We affirm.

I. FACTS

Appellant Richard A. Schmidt and James Hooker conspired to illegally import approximately five pounds of cocaine from Lima, Peru to Tacoma, Washington. Pursuant to this plan, on the evening of January 6, 1976, Schmidt scuba-dived…

concurring and dissenting:

I would reverse this conviction and remand the case for a new trial because Schmidt’s confessions to the DEA agents were involuntary as a matter of law and their admission violated Schmidt’s right to due process of law and his privilege against self-incrimination. I would also direct the district court, on remand, to decide whether the discovery of the canister affixed to the Santa Mercedes after the vessel reached Seattle was the product of Schmidt’s confessions, rather than solely the product of searches and seizures conducted by Peruvian authorities. If the canister found in Seattle was the fruit of the illegal confessions, I would direct that the canister of cocaine be suppressed.

I

The first question is whether Schmidt’s inculpatory admissions to the DEA agents were involuntary under the totality of the circumstances. We must address that question following an independent examination of the whole record. (Clewis v. Texas (1967) 386 U.S. 707 , 87 S.Ct. 1338 , 18 L.Ed.2d 423 ; Culombe v. Connecticut (1961) 367 U.S. 568 , 81 S.Ct. 1860 , 6 L.Ed.2d 1037 .) “When conceded facts exist which are irreconcilable with such mental freedom, regardless of the…