United States v. Llewellyn McGavic

337 F.2d 317, 1964 U.S. App. LEXIS 4219

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 6, 1964
• Docket: 15470
• Status: Published

Opinions

CECIL, Circuit Judge.

This is an appeal from a judgment of conviction of the appellant in the United States District Court for the Western District of Kentucky. The appellant was tried to a jury on an information charging him with using slugs in a vending machine, in violation of Section 491(a), Title 18 U.S.C.¹

On January 3, 1963, as Mr. Lloyd K. Lindsey was driving past the Kwick-Kleen Laundry, in Louisville, Kentucky, he observed the appellant, Llewellyn Mc-Gavic, and his co-defendant, John P. Rosenbarger, Jr., in the laundry, standing next to two coin changers. Mr. Lindsey managed the laundry for his mother. He stopped his car and watched the two men from across the street. Mr. Lindsey did not see either man take any money from the coin changers nor did he see what they may have put into them. His suspicion was aroused because they stood in front of the machines for some time and he called the police.

When the police arrived, the men were just running from the door of the laundromat to a 1957 Plymouth automobile parked in front of the laundry. They entered the car and turned the lights on. At that time they were stopped, taken out of the car, placed under arrest and searched. They were taken to police headquarters and booked on a charge of “vagrancy investigation.” This was described as “a technical charge which the city police use to investigate an offense which they believe to have happened.” The arrests were made without a warrant.

After the arrest the coin changers were opened and the change boxes withdrawn. On top of the boxes there were numerous slugs. On the bottom of the boxes there were some silver quarters. One machine was empty and would not release any more quarters. There were ■45 copper colored slugs in one change box and 53 in the other one.

About two and a half hours after the ■arrest the appellant was interviewed at police headquarters by Alvin W. Dickerson, a special agent of the United States Secret Service. The appellant did not deny being in the laundromat. When he was questioned about the slugs, he at first denied any knowledge of them. He then made the statement: “I will say this; I did not make these slugs and if I talked I would have to leave Louisville.” He inquired if similar slugs had been received in the Louisville area within the past week.

At the trial the judge ruled that the arrest was illegal for the reason that there was no offense of vagrancy investigation known to Kentucky law. He did not permit any articles obtained by the search to be admitted into evidence. He did, however, permit agent Dickerson to testify to the statements made by the appellant at police headquarters. One of the questions presented on this appeal concerns the admission of these statements. It is claimed that since the arrest was illegal any statement made by the appellant while in custody under that arrest was incompetent and inadmissible in evidence. This has been referred to as the “poisonous tree” doctrine. If the tree is poisonous, the fruits from it are likewise poisonous. Because of our conclusion that McGavic’s admissions were properly received in evidence, we need not consider the question of the legality of his arrest.

Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, is the most recent case involving the extent of the “poisonous tree” doctrine. There the Court held that the declai’ations of Toy made in his bedroom simultaneously with the arrest were inadmissible. In the same case the Court held that the unsigned confession of Wong Sun made upon his voluntary return to police headquarters several days after he had been released on his own recognizance was admissible. Following Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307, the Court held that the connection between the arrest and the statement had “become so attenuated as to dissipate the taint.”

The government claims here that the taint of the illegal arrest of McGavic was dissipated for the following reasons: 1. McGavie’s statement was not contemporaneous with the arrest. Sufficient time elapsed between the arrest at 8:30 p. m. and the interrogation at 11:00 p. m. to dissipate the taint. 2. The federal officers who interviewed McGavic did not participate in the arrest, had no control over the officers who did participate and were totally unrelated to the officers who made the illegal arrest. 3. The defense attorneys were given the federal agent’s notes of the interview and no claim was made that the interview was conducted improperly or that the admissions were not made voluntarily. 4.. There is no indication in the record to show that the fruits of the illegal search were used in the interview. Only the slugs taken from the coin machine were used. 5. The interview took place out of the presence of the arresting officers and without their assistance.

In the Wong Sun case the statements of Toy made simultaneously with the illegal arrest and the unsigned confession of Wong Sun made several days thereafter are at opposite ends of the pole in considering the fruit of the poisonous tree. Between these two extremes there is a line, on one side of which the fruit is contaminated by the illegal arrest, and on the other side of which the taint has been dissipated. Where this line shall be drawn is a question of fact to be determined in each case. In our case the district judge found that the statements of the appellant were not contaminated by the illegal arrest and, applying the rule of evidence on admissions against interest, permitted agent Dickerson to give testimony of the statements now in question.

Considering all of the facts and circumstances of this case, we conclude-that the factual finding of the district judge was not clearly erroneous and that-there there was no error in the admission of this testimony.

We are further of the opinion that no» prejudice resulted to the appellant by reason of the introduction of the questioned statements into evidence. The-evidence of guilt was overwhelming. Mr. Lindsey observed the appellant and his-co-defendant for about fifteen minutes-standing by the coin changers. They were putting something into the changers, turning the handle and taking something out. There was a constant repetition of this process. There was evidence-that these men ran from the laundromat to their car when the police came. Immediately after the arrest and before-anyone else used the machines, the tops-of the coin boxes were covered with; slugs.

Another claim on behalf of the-appellant is that the court erred in answering questions of two jurors. Mrs. Eschew asked: “Were any similar slugs,, slugs similar to this, found in the possession of the defendants?” The trial judge-answered: “Mrs. Eschew, these — that evidence is not before the jury.” The-juror said: “Oh, I see.” Another juror-asked: “Were any excessive number of quarters found on the persons of these-two young men?” The judge answered: “What developed as a result of the search; is not before the jury.” The questions came after the arguments and just before the court’s instructions to the jury. At the conclusion of the instructions, counsel for the appellant asked the judge, because of his answers to the questions, to instruct the jury that its verdict “must be based upon the evidence that they heard here from the stand.” The-request was granted and the jury was; instructed “and your verdict shall be based solely upon the evidence that you have heard from the witness stand.” No other objection was made to these questions at the trial. Counsel now claims that the judge should have said in answer to these questions: “There is no evidence in this case that the defendants had any similar slugs in their possession” and “There is no evidence in this case that an excessive number of quarters were found on the persons of these defendants.” We think the trial judge was not bound to give the perfect answer as it is now conceived by counsel in a backward glance. We find this claim to be without merit.

The judgment of the District Court is affirmed.

1 . “(a) Whoever, being 18 years of age or over, not lawfully authorized, makes, issues, or passes any coin, card, token, or device in metal, or its compounds, intended to be used as money or whoever, being 18 years of age or over, with intent to defraud, makes, utters, inserts, or uses any card, token, slug, disk, device, paper, or other thing similar in size and shape to any of the lawful coins or other currency of the United States or any coin or other currency not legal tender in the United States, to procure anything of value, or the use or enjoyment of any property or service from any automatic merchandise vending machine, postage-stamp machine, turnstile, fare box, coinbox telephone, parking meter or other lawful receptacle, depository, or contrivance designed to receive or to he operated by lawful coins or other currency of the United States, shall be fined not more than $1,000.00 or imprisoned not more than one year, or both.” Section 491(a), Title 18 U.S.O.