544 F.2d 353 (9th Cir. 1976)
Pheaster and Inciso were tried together before a jury in the United States District Court for the Central District of California and convicted on November 21, 1974, on all twelve counts of an indictment.1 Count One charged both defendants with conspiring to kidnap and hold sixteen-year-old Larry Adell for ransom in violation of 18 U.S.C. § 1201(c).2 Counts Two through Twelve charged Pheaster with mailing six ransom-demand letters and five extortionate threat letters, and charged Inciso with aiding and abetting those mailings.3
Larry Adell disappeared on the evening of June 1, 1974, after leaving friends inside Sambo’s North restaurant in Palm Springs and walking into the parking lot to meet a man named Angelo who was to deliver a pound of free marijuana.4 Beginning at approximately 2:30 a.m. on June 2, Robert Adell, Larry’s father, received a series of ten typed and handwritten ransom letters, two telephone calls, and instructions for four separate ransom deliveries, all demanding $400,000.5 The instructions for the first delivery arrived late on June 9, the second failed on June 12 when Mr. Adell demanded more assurances of release, the third on June 23 was aborted due to monitoring of the site, the fourth on June 30 produced no contact, and no further communications were received from the kidnappers.
FBI agents arrested Pheaster and Inciso on July 14, 1974, after both had been under surveillance.6 Immediately after his arrest Pheaster made incriminating statements during a car ride to the county jail and led agents to a typewriter, pistol, and other items. Officer John W. Turley identified Pheaster’s voice on a tape recording of one ransom call after being shown only that recording.7 Agents also obtained dictated handwriting exemplars from Pheaster that reproduced spelling errors appearing in the ransom notes.8 A search of Pheaster’s apartment pursuant to warrant and a search of Inciso’s residence pursuant to warrant, together with a warrantless search of Pheaster’s automobile, yielded additional physical evidence.91011
At trial the government introduced hearsay testimony from two of Larry Adell’s friends recounting his statements on June 1 that he intended to meet Angelo at Sambo’s North that evening. The government also introduced testimony from Mrs. Elmyra Mapes concerning statements Pheaster made to her about the kidnapping scheme and his dealings with Inciso.12 After the jury returned guilty verdicts on all counts, Pheaster received concurrent life and seventy-year sentences and Inciso received the same sentences; both defendants appealed to the Ninth Circuit.13
Whether Count One of the indictment sufficiently alleged a federal conspiracy to kidnap under 18 U.S.C. § 1201(c)?14
An indictment charging conspiracy need not allege with technical precision all elements of the object offense.15 Certainty to a common intent sufficient to identify the offense is all that is required.16 When challenged after verdict the indictment is liberally construed if the necessary facts appear in any form or by fair construction.17
Yes. Count One charged that appellants conspired to unlawfully kidnap and hold Larry Adell for ransom, the said Larry Adell having been willfully transported in interstate and foreign commerce following his kidnapping, in violation of 18 U.S.C. § 1201(c).18 The charging language, read as a whole with the overt-act allegation, attributes the interstate transportation to the conspiracy involving appellants rather than a hypothetical prior kidnapping.19 The indictment performed the essential functions of apprising the defendants of the charges and protecting against double jeopardy, especially given the absence of any claim of prejudice and the late challenge after all evidence had been received.20
Count One sufficiently alleged a federal conspiracy offense under 18 U.S.C. § 1201(c) and supports the convictions.21
Whether the Miranda warnings given to Pheaster after arrest were adequate and whether his subsequent statements were admissible despite his request for counsel?22
A suspect who requests counsel may later waive the right if the waiver is knowing and intelligent.23 The government bears a heavy burden to show waiver.24 Waiver may be implied from the totality of circumstances including the suspect's voluntary decision to speak after being confronted with evidence.25
Yes. The agent gave Pheaster the standard Miranda warnings though omitting explicit mention of counsel during interrogation, but Pheaster interrupted to state that he knew his rights and demanded an attorney.26 During the car ride Pheaster was reminded of his rights, confronted with fingerprint evidence, and after fifteen to twenty minutes voluntarily began cooperating and supplying details about the kidnapping to help locate Larry Adell.27 The statements resulted from an objective presentation of evidence rather than prolonged interrogation, and the district court found no coercion or abuse.28
The Miranda warnings were adequate under the circumstances and Pheaster's statements were properly admitted as the product of a valid waiver.29
Whether the pretrial voice identification of Pheaster from a tape recording violated due process?30
No. Officer Turley, who had known Pheaster for fifteen years and spoken with him a month earlier, was shown only the tape recording of the ransom call and identified the voice as Pheaster's.33 Although the procedure was suggestive because the agent named Pheaster, necessity existed because Pheaster was not in custody and confirmation was critical to the rescue effort.34 Turley's in-court identification rested on his independent long acquaintance rather than the single pretrial exposure.35
The voice identification procedure did not violate due process and the testimony was properly admitted.36
Whether the use of dictated handwriting exemplars containing specific spelling errors violated Pheaster's Fifth Amendment privilege against self-incrimination?37
The Fifth Amendment privilege protects only against compelled testimonial communications.38 It does not extend to compulsion that makes the suspect the source of real or physical evidence such as handwriting exemplars.39 Handwriting exemplars are identifying physical characteristics outside the privilege even when used to show spelling patterns.40
No. Agents dictated material containing the unusual spelling mistakes from the ransom notes, and the resulting exemplars were introduced to show matching errors.41 Handwriting and spelling are acquired skills that constitute identifying physical characteristics rather than protected communications; the content of the exemplars was not testimonial.42
The dictated handwriting exemplars did not violate Pheaster's Fifth Amendment privilege and were properly admitted.43
Whether probable cause and exigent circumstances justified the warrantless search of Pheaster's automobile?44
A warrantless automobile search is permissible when there is probable cause to believe the vehicle contains evidence of crime and exigent circumstances exist because the vehicle is readily mobile and evidence may be lost or destroyed.45
Yes. Pheaster had driven the car during the kidnapping period, it had been seen near drop sites, and he had been observed placing a carrying case in the trunk after a conversation apparently related to ransom money. The car was parked on a public street accessible to others, Larry Adell was not in custody of the known suspects, and there was a real possibility that other participants might destroy evidence or that the car contained information that could locate the victim before he was killed.46
Probable cause and exigent circumstances justified the warrantless search of Pheaster's automobile.47
Whether hearsay statements by Larry Adell expressing his intention to meet Angelo were admissible under the state-of-mind exception to prove that the meeting occurred?48
Yes. Larry told friends on June 1 that he intended to meet Angelo at Sambo's North that evening to obtain a pound of free marijuana.51 The statements were offered to show Larry's state of mind and, inferentially, that the meeting with Inciso (identified as Angelo) occurred.52 Although the inference requires action by another person, the doctrine as applied in Hillmon and subsequent cases permits the inference, and the statements were relevant to rebut the defense theory of voluntary disappearance.53
Larry Adell's hearsay statements were properly admitted under the state-of-mind exception.54
Related opinions on this issue
Judge Ely concurred in the admission of Larry Adell's statements solely because of the binding precedent established by Mutual Life Insurance Co. v. Hillmon.55 He expressed strong agreement with the criticisms voiced by Justice Cardozo in Shepard v. United States and Chief Justice Traynor in his dissenting opinion in People v. Alcalde.56 Judge Ely noted that a declaration of one person's intent cannot safely prove what another person probably did.57
He further observed that the House Judiciary Committee had specifically intended to limit the Hillmon doctrine when it drafted Rule 803(3) of the new Federal Rules of Evidence.58
Whether statements by Pheaster to Mrs. Mapes were admissible against Inciso under the co-conspirator exception to the hearsay rule?59
Statements of a co-conspirator are admissible against another conspirator if the statements were made during the pendency of the conspiracy, in furtherance of the conspiracy, and independent evidence establishes a prima facie case of the conspiracy and the declarant's and defendant's connection to it.60
Yes. Mrs. Mapes accompanied Pheaster to a drop site and was recruited by him to assist at a second site.61 During the June 22 conversation Pheaster discussed the kidnapping scheme and his dealings with Inciso and transferred the ransom-note typewriter to her.62 The district court found a prima facie showing that the statements were in furtherance of the conspiracy.63 The jury was properly instructed on its role in assessing credibility.64
Pheaster's statements to Mrs. Mapes were properly admitted against Inciso under the co-conspirator exception.65
Whether the evidence was sufficient to prove that Inciso participated in the conspiracy to kidnap Larry Adell?66
Evidence is sufficient to support a conspiracy conviction if, viewed in the light most favorable to the government, a rational trier of fact could find beyond a reasonable doubt that the defendant knowingly joined the conspiracy and committed at least one overt act in furtherance of it.67
Yes. Pheaster and Inciso communicated frequently by telephone until shortly before the kidnapping, after which they ceased using residence telephones and switched to pay telephones whose locations and call dates corresponded to ransom-delivery events.68 Inciso was identified by Larry's date as the man named Angelo whom Larry intended to meet, and Mrs. Mapes testified that Pheaster described his business dealings with Inciso as involving the abduction.69 The evidence, though circumstantial, permitted a rational jury to conclude that Inciso participated in the conspiracy.70
The evidence was sufficient to prove Inciso's participation in the kidnapping conspiracy.71
Related opinions on this issue
Judge Ely dissented from the affirmance of Inciso's conspiracy conviction.72 He viewed Adell's hearsay statement naming Angelo as the strongest evidence linking Inciso to the conspiracy, but he considered it highly prejudicial.73 Judge Ely concluded that the overall evidence, even when viewed in the light most favorable to the prosecution, was insufficient to establish Inciso's participation in the conspiracy beyond a reasonable doubt.74
He emphasized the tenuous nature of the corroborating evidence and the risk that the jury would misuse the hearsay statement.75
Whether the evidence was sufficient to prove that Larry Adell was transported in interstate commerce?76
Yes. Pheaster told agents shortly after arrest that Larry was being held in Las Vegas.79 Larry was seen on or about July 1 in Apple Valley, California, appearing pale and sedated, and was later observed by two high-school acquaintances in Las Vegas casinos on July 3 and between July 4 and 6, appearing thinner and paler. Although the sightings were brief and at a distance, the jury rejected the possibility of voluntary travel and the evidence was sufficient to support the interstate-transportation finding.80
The evidence was sufficient to prove that Larry Adell was transported in interstate commerce.81
Related opinions on this issue
Judge Ely also dissented from the affirmance of the interstate transportation finding.82 He concluded that Pheaster's initial statement to agents placing Larry in Las Vegas was not adequately corroborated. The brief, distant, profile sightings by two witnesses in Las Vegas casinos, one of whom admitted uncertainty, did not constitute the substantial independent evidence required by Opper v. United States to establish the trustworthiness of the statement.
In his view, the evidence left open the reasonable possibility that Larry had traveled to Las Vegas voluntarily and without coercion.