Benjamin Cushing Duniway

“ We note, too, that neither counsel noted the error if it occurred, or called it to the judge's attention. We also know, however, that every lawyer or judge is occasionally astonished, upon reading a transcript, at what it shows that he said, but also chagrined to find, upon checking the reporter's notes or recording, that he did say it. It is a rare person indeed who does not occasionally suffer a slip of the tongue, when either speaking or reading. The judge's certificate does say that he did not instruct the jury as the transcript shows (see Rule 10 (e) F.R.App.P.) . ”

“ One agent, when confronted with the facts demonstrating that his affidavit was false, did not admit that it was false; it was merely �-Y ́inconsistent.¡ These agents do not search a citizen; they ́frisk¡ him, even if that involves fishing paper money out of his pocket and his wallet. Their fear for their own safety approaches paranoia. Even when 6 or 8 agents, all armed, have a group of citizens herded into a room, a search of a citizen's wallet is justified on the ground that it might contain a razor blade. These agents do not break into a house without a warrant ”

“ Yet it is what the jury heard that is important; the jury never saw the paper from which the judge was reading. In short, we are unable to determine from the record whether or not, in his oral instruction, the judge said ́These instructions compel‘ . . . or ́The law does not compel . . . .‘ If the former words were spoken, there is clear error.
c. The Controversy about the Reporter's Transcript At oral argument of the appeals, and in response to comment from the bench, we learned why counsel did not appear in response to the certificate of the judge. ”

“ Headnote Citing References We deal here with a specific problem, conflict of interest. In this case, counsel did in fact ́slight the defense of one defendant [Marshall] , for that of another [Burkle] .‘ Sanchez, supra, 446 F.2d at 850. The court's error in instructing the jury compounded the problem. That no one seems to have been aware of the conflict or the error does not save the conviction; rather, it emphasizes the fact that Marshall did not get the effective assistance of counsel to which he was entitled. ”

“ After Burkle left, Williams said ́He's got the money. He's got a different car. The white van parked across the street.‘
A number of agents had been deployed near the motel to watch. Burkle left the motel, entered the van and it was driven to a residence on Hackett Street in Lakewood. Both Burkle and the driver of the van left the van and entered the residence. A few minutes later they came out again. Burkle was carrying a brown paper shopping bag. The two re-entered the van, and a short distance away they were stopped and arrested by several agents, including supervising agent Alden. ”

“ The response was ‘Come in’ after the door was opened.�-Y‘ [6] Headnote Citing References Assuming, however, that the words ́Come in‘ were spoken, we cannot uphold the finding that there was consent. We hold that the judge's finding is clearly erroneous, i.e., we are convinced, after examining the whole record, that a mistake has been made. The agents were ordered to ́secure‘ the house with or without consent, and to try to find the money. One of the principal actors, Hoelker, was thoroughly impeached. ”

“ Although invited by us to do so, counsel for Marshall has not responded to the petition for a rehearing.
We now find that the judge gave a correct instruction, and that in this respect there was no error. Marshall, however, is still entitled to a new trial on the other ground stated in our opinion.
The petition for a rehearing is denied.
Footnotes 1 ↑ The agents involved speak an almost impenetrable jargon. They do not get into their cars; they enter official government vehicles. They do not get out of or leave their cars, they exit them. They do not go somewhere; they proceed. ”

“ Effective counsel does not mean errorless counsel, but in the context of joint representation and inculpatory statements otherwise inadmissible to a particular defendant, the effectiveness of counsel must square with the court's reliance on counsel's engaging in full and effective crossexamination, Nelson v. ”

“ The government has the burden of showing by a preponderance of the evidence that one or more of these exceptions exists. Lego v. Twomey, 1972, 404 U.S. 477, 488-489, 92 S.Ct. 619, 30 L.Ed.2d 618. In reviewing a judge's decision in such a case, we apply the ́clearly erroneous‘ rule. United States v. Page, 9 Cir., 1962, (in banc) 302 F.2d 81, 85.
[4] Headnote Citing References [5] Headnote Citing References The first ground on which the trial judge upheld the entry into the house is that there was a valid consent. ”

“ Williams left the second place, met Hoelker, returned to the same place, and drove away with Burkle and a third person. Later Hoelker met Williams, who phoned Burkle with Hoelker listening. Hoelker also retrieved the $5,000. The next day there were more such phone calls, overheard by Hoelker. Finally, there was a call in which Burkle said that ́Things were finally put together,‘ and Burkle and Williams agreed to meet at the All Six Motel. Hoelker and Williams and another agent went to the motel where Williams rented one room and Hoelker rented a room nearby. ”

“ Voluntary consent to a search is an exception to the warrant requirement. Schneckloth v. Bustamonte, 1973, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) . It must be voluntary, and voluntariness ́is a question of fact to be determined from the totality of all the circumstances.‘ 412 U.S. at 223, 93 S.Ct. at 2045. The trial court's finding of consent is based primarily on the testimony of Hoelker and Willis that whoever answered the door said ́Come in.‘ We have serious doubts that those two words were spoken.FN4 Apparently the trial judge had some doubt, too. ”

“ A person does not tell them his name; he identifies himself. A person does not say something; he indicates. They do not listen to a telephone conversation; they monitor it. People telephoning to each other do not say ́hello;‘ they exchange greetings. ”

“ Q And didn't you consciously make a decision to go secure the premises without a warrant?
A During the narcotics arrest we can secure without a warrant to search.
Q You didn't approach that door with the purpose of making an arrest of anybody inside that house, did you?
A We-the purpose for entering the house-the purpose for knocking on the door was to secure the house, not to search the house.
The purpose, then was to go back to secure the residence. If it involved searching the whole house we had the attorney on the phone to get a search warrant, but it wasn't necessary. ”

“ Yes.THE WITNESS: I was conducting a narcotics investigation.THE COURT: Yes.THE WITNESS: I would like to ask the occupants of the place some questions and I stepped into the house.BY MR. LUND:Q. With your gun in your hand?A. That is correct, sir, although it was not pointed directly at anyone.I hold my weapon at my side.THE COURT: All right.Have you told us all you can remember about what was said there as you got in?THE WITNESS: That is correct.‘ Thereafter the prosecutor came to the rescue and asked if he heard a conversation between Agent Willis and the person who answered the door. ”

“ The type is expanded and larger than average type.In transcripts prepared by me and by my employees, we try to include at least 200 words per page and indent only five spaces from the left margin. Type is regulation pica size and not expanded.In using the format that Miss Peterson uses in preparation of a reporter's transcript, the cost of the transcript would be almost doubled in my opinion.‘
Unfortunately the judge let his sympathy for the reporter and his annoyance at counsel get the better of his judgment. What he did is not consistent with what is expected of a federal judge. ”

“ They do this for their own protection. They seem to think that every citizen must carry some sort of identity card or paper, which they call ́I.D.¡, and must display it to them on demand. [2]
The relevant facts must be stated in some detail. One Williams, who was charged with violating the Illinois narcotics laws, agreed
to ́cooperate‘ with the Bureau and to try to set up a buy of amphetamines from Burkle, with whom he had had previous dealings. The government flew Williams from Illinois to California. Williams telephoned Burkle, with agent Hoelker listening in, to try to arrange a buy. ”

“ Eischen and Mr. Morgan in the house, was placee [sic] in there for that purpose to communicate the fact that they were actually in the house and I actually observed them in the house and that I actually arrested them.
Q Your affidavit says that you looked through an open door and saw it on the bed.
Now, you tell me in your testimony here that you heard a door slam then you tried to push on it and there was pressure on the other side, then you tried to force it open and then you saw Morgan and saw the bed.
THE WITNESS: My testimony is correct and the affidavit is incorrect. ”

“ One-half of this amount to be paid by you would be $946.50. . . .‘ FN8 ́Regarding your bill, please be advised that I refuse payment for the following reasons:The estimate was $2,500 which I secured from my clients for payment and which sum was paid. At this time, my clients do not have further funds to pay this bill and since I feel it is their responsibility and not mine, I suggest that you send your bills directly to them. ”

“ Willis and I then conducted a search of his person.I retrieved Two-thousand Two-hundred Dollars ($2,200.00) of official advance funds from his person.Part of the money was in the wallet and part of the money was contained in his right front pocket.¡ **** Hoelker insisted that this search was a "frisk" for weapons, not a search. ́Q. Did you search Mr. Hogue on those premises? A. Everyone was frisked for weapons. Did I do it personally?I do not remember.Q. Did you search Mr. Berry?A. I don't remember that.Q. Did you search Mr. Eischen?A. That, I did.Q. Did you search Mr. Morgan?A. That, I did. ”

“ At this point, the primary interest of the agents shifted from law enforcement to the recovery of $3,400 in ́prerecorded official government funds.‘ Agent Alden, who was in charge of the operation, testified as follows:
́A After the arrest was consummated, approximately two blocks away from the residence on Hackett I instructed my agents to secure the residenceFN3 on Hackett, 4354, and to request the suspects concerning the missing official advance funds. ”