John Joseph Walsh v. United States

371 F.2d 135

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 13, 1967
• Docket: 19950_1
• Status: Published

Opinions

PER CURIAM:

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 L.Ed.2d 882 (1966).

In closing argument counsel for the Government stated:

“No one has shown a bit of evidence, particularly the defendant, that the defendant took one step to return the car.”

Appellant asserts that this remark amounted to a comment on his failure to take the stand and as such constituted prejudicial misconduct.

The remark as a whole, while unfortunately and most ineptly phrased, was addressed to appellant’s failure to establish a particular fact (a perfectly legitimate subject of comment) rather than to his failure to take the stand himself. Any improper collateral innuendo was, in our judgment, cured by the court’s charge to the jury that the defendant need not testify and that no presumption or inference of any kind might be raised or drawn from such failure.

After the jury had been deliberating for close to six hours it reported itself unable to agree upon a verdict. The court nevertheless sent the jury back for further deliberation. Appellant asserts that the manner in which this was done was coercive. We cannot agree. We regard Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965), the case upon which appellant relies, as distinguishable. There — as appears from the dissenting opinion in the Court of Appeals [117 U.S.App.D.C. 346, 330 F.2d 220 (1964)] — the trial judge had bluntly declared: “Now I am not going to accept this. You have got to reach a decision in this case.” Here the jury was not told that it must reach a verdict. Nor were the minority members of the jury singled out for a lecture, or urged to defer to the views of the majority. The jury was simply told to keep trying.

Judgment affirmed.