KRULL v. UNITED STATES

Writ of Certiorari Denied March 25, 1957. See 77 S.Ct. 674.

JONES, Circuit Judge.

The appellants, George Krull and Michael Krull, were charged in a single indictment with these offenses:

(a) By Count 1, both defendants were charged with the kidnapping and transportation from Tennessee into Georgia of the female victim, named in the indictment, in violation of 18 U.S. C.A. § 1201;

(b) By Count 2, Michael Krull was charged with committing rape upon, and George Krull was charged with aiding and abetting Michael in raping of the named victim in the Chickamauga and Chattanooga National Military Park, alleged to be under the exclusive jurisdiction of the United States, in violation of 18 U.S.C.A. § 2031;

(c) By Count 3, George Krull was charged with committing rape, and Michael Krull was charged with aiding and abetting George in the rape of the same victim in the Chickamauga and Chattanooga National Military Park, alleged to be under the exclusive jurisdiction of the United States, in violation of 18 U.S.C.A. § 2031; and

(d) By Count 5, the defendants were jointly charged with the interstate transportation of a stolen automobile in violation of the Dyer Act, 18 U.S.C.A. § 2312.

The appellants were found guilty of the offenses of which they were accused by the indictment. For the conviction under Count 1 of the indictment they were sentenced to life imprisonment; for the conviction of the charge of Count 2 they were sentenced to death; the same penalty was imposed upon the conviction of the Count 3 charges; and for the conviction under Count 5, each defendant was sentenced to five years imprisonment. Counsel for the appellants, ably representing them by court appointment in a cause distasteful in many of its sordid aspects, have appealed from the convictions and sentences. We shall make no more references to the revolting evidentiary details disclosed by the record than is required properly to dispose of the questions which we are called upon to decide.

Counsel for Michael Krull who represented him at his trial and on this appeal were appointed on September 12, 1955. They conferred with him while he was confined in a prison known as the Fulton Tower. Thereafter Michael Krull was removed to the Federal Penitentiary at Atlanta for the assigned reason of an attempted escape. Of this removal the counsel for Michael were told by the United States Attorney who advised that counsel could see their client at the penitentiary and if anything was not satisfactory in regard to interviewing their client to let him, the United States Attorney, know. The case was set for trial and the trial commenced on Monday, January 30, 1956. Five days before this date, on Wednesday, January 25, 1956, counsel for Michael went to the penitentiary for an interview with him. He was brought to them in a room about twelve feet wide and twenty feet long. The appellant, Michael Krull, and his counsel conferred at a table at one end of the room while at the other end of the room, seated at a table and facing them, was a Federal Correctional Officer. Counsel asked the officer to leave and he replied that his orders required him to stay. Counsel talked in a low tone to Michael for forty-five minutes to an hour. They asked their client all of the questions they would have asked if the officer had not been in the room. They stated that they believed the officer could have overheard them. No report of the interview or anything there said was made to the United States Attorney or to any of his assistants. Counsel for Michael made no request of the warden or other supervisory official at the penitentiary for a private conference with their client; they made no complaint to the United States Attorney who had requested that he be told if anything was not satisfactory with respect to interviewing their client. At the trial one of counsel for Michael said that he felt the matter was not in the purview of the United States Attorney. Counsel made no application to the Court or to the Judge for an order providing for a private interview. Counsel stated that he thought he "had gone as far as the law required him to go". When the case was called for trial, counsel for Michael moved on his behalf for a continuance, asserting that the presence of the officer in the room and the refusal of the officer to leave when so requested denied or deprived Michael Krull of the right to counsel guaranteed to him by the Sixth Amendment to the Constitution of the United States. The motion was denied and the ruling is assigned as error.

The right which the appellant, Michael Krull, seeks to invoke is one of those which are guaranteed by the Bill of Rights. "In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defense". U.S.Const. Amend. VI. The aid of counsel in consultation, investigation and preparation for trial in a criminal case is as necessary as the presence and participation of counsel at the trial itself. Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; House v. Mayo, 324 U.S. 42, 65 S.Ct. 617, 89 L.Ed. 739; Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 166, 90 L. Ed. 61; United States v. Venuto, 3 Cir., 1950, 182 F.2d 519; Thomas v. District of Columbia, 1937, 67 U.S.App.D.C. 179, 90 F.2d 424; Shapiro v. United States, 1947, 69 F.Supp. 205, 107 Ct.Cl. 650; McDonald v. Hudspeth, D.C.Kan., 41 F.Supp. 182.

The prosecution is not entitled to have a representative present at a conference between an accused and his counsel to overhear their conversation. Coplon v. United States, 1951, 89 U.S.App. D.C. 103, 191 F.2d 749, certiorari denied 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690; Caldwell v. United States, D.C.Cir., 1953, 205 F.2d 879; United States ex rel. Cooper v. Denno, 2 Cir., 1955, 221 F.2d 626, certiorari denied 349 U.S. 968, 75 S.Ct. 906, 99 L.Ed. 1289; United States v. Lebron, 2 Cir., 1955, 222 F.2d 531, certiorari denied 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774.

The right of an accused to consult his attorney in private is not one without some limitations. It was held by this Court, in a case where an accused had been denied the right to confer with his counsel during the evening of the first day of the trial, that:

It is here shown by the statement of counsel for Michael Krull that he was asked all of the questions which would have been asked of him had there been no one in the room with them. Whatever the officer may have overheard, if anything, was not communicated to the Government prosecutors. It did not appear that the defense of the accused was in any way hampered or prejudiced. The need for conferring in a low voice may have been an inconvenience but it did not infringe any constitutional right.

The interview between Michael Krull and his counsel was on a Wednesday, with four intervening days before the date of the trial on the following Monday. Had privacy been sought by a request to the prison warden, or had the United States Attorney been asked to have arrangements made for a conference with the guard absent, or had an application been made to the trial court, it may be assumed that facilities for a conference would have been provided without anyone present but the accused and his counsel. Counsel for the defendant, Michael Krull, stated to the court that "I thought that since the warden had notified me that I would be able to see him, and believing at that time that it was a constitutional right of my defendant to be counseled with in private, I thought that I had gone as far as the law required me to go." This statement was made in response to a reminder by the United States Attorney of his statement to counsel for Michael Krull that if anything about interviewing the accused at the penitentiary was not satisfactory to let him (the United States Attorney) know. Thus it appears that the hope of preserving a point for appeal was more important to defense counsel than a private interview with his client. Ample opportunity existed for asking for a private consultation. The request should have been made if a private interview was believed to be necessary or desirable. There was no error in refusing to grant a continuance or to grant a new trial on the ground that Michael Krull had been denied the effective right of counsel.

Counts 2 and 3 stated that the offenses there charged were committed in Chickamauga and Chattanooga National Park, a place under the exclusive jurisdiction of the United States. The statute, 18 U.S.C.A. § 2031, makes rape a crime under Federal law when committed "within the special maritime and territorial jurisdiction of the United States". It became necessary, therefore, not only to prove that the offenses charged by these two counts were committed, but also to establish the situs where committed and show that such situs was within the jurisdiction of the United States. Much of the time consumed by the Government in making out its case was spent in the presenting of testimony and documentary evidence offered for the purpose of showing that the United States had jurisdiction over the park, demonstrating to the extent material the boundaries of the park, and proving that the offenses of rape were committed within its confines. There are some specifications of error assigned by each of the appellants, raising in different form the same questions of law. Some specifications are raised by one of the appellants but not by the other. Except as material to a consideration of a particular point, we will not concern ourselves with which, if only one, of the appellants presented the question.

It is asserted that the evidence was insufficient to show that the offenses of rape were committed within the territorial jurisdiction of the United States because, it is said, the Park never came into existence as such. The Act of Congress enacted for the purpose of establishing the Park, provided:

In the brief of one of the appellants it is contended that, since no one apparently knows whether or not the Attorney General made a report that a perfect title had been secured, the jurisdiction of the United States over the area has not been proved and, it would seem, cannot be proved without a further Act of the Congress. The Administrative Officer of the Park had lived within its boundaries for twenty-eight years during all of which he was a park employee of the United States. He testified as to the possession and control of the area by the United States. The right of the United States to exercise jurisdiction after so long a time cannot be defeated or diminished by the absence of proof that the Attorney General approved the title. We do not think the giving of the title report is a condition precedent to the vesting of jurisdiction in the United States. If there be such a requirement, it will be presumed, after the lapse of such a long period of time during which the United States has exercised a de facto jurisdiction over the area, that the report was made. 20 Am.Jur. 174, Evidence, §§ 170, 172.

The United States introduced in evidence a map, U. S. Exhibit 1, showing the boundaries of the Park. It was identified by a supervising draftsman of the Army Corps of Engineers as an official map. The Government introduced another map of the Park, U. S. Exhibit 3, which was taken from the files of the Park and it was a part of the official Park records. The Government introduced a book entitled United States Military Reservations, U. S. Exhibit 4, showing the location and containing a description of the Park and a title history of the various tracts comprising it. The book was authenticated by a War Department Certificate and the Seal of the Secretary of War. To the admission of these exhibits in evidence objections were made and error is assigned to the Court's rulings in admitting them. The maps were admitted, not to show title as appellants assume, but to show boundaries and to establish the location of the place over which the jurisdiction of the United States was exercised so as to show that the offenses were committed within the jurisdiction of the United States. The book, so the appellants assert, is hearsay and no less so than it would have been without an official seal.

The Judicial Code makes provision for the introduction of business records and Government records and papers. Its provisions are:

The evidence admitted is of the kind contemplated by the Code.

In their presentation of the Government's case it was apparent that the United States attorneys were anxious to produce everything that might be required to establish venue. They had before them and followed the opinion of Mr. Justice Holmes who, in disposing of like objections to evidence similar to that we consider here, said:

The rule as announced in the Holt decision is applicable here. The doctrine of the Holt case was followed and applied by this Court in a murder case. From the opinion we quote:

It probably would be enough, for the purpose of dispelling any doubt as to the jurisdiction of the United States over the Park, to refer to the express determination of the question by the Supreme Court of the United States. The holding is:

In a recent case this court affirmed a conviction where the appeal was on the single ground that the United States failed to prove that the offense was committed within the "special territorial jurisdiction of the United States." There it was said:

There was no failure of the United States to show its jurisdiction over the Park.

Park employees were called as witnesses for the United States. Objection was made to their parol testimony as to the location of monuments and boundaries. Objection was made that, to the extent such testimony was given with reference to a map, the testimony was hearsay and should have been excluded. The testimony was properly received. It did not appear that there was any question as to the location of the boundaries. On the contrary they seemed to have been well established. The question was not one as to a disputed boundary but whether an offense was committed within or without the boundary. Oral testimony is admissible as to monuments and boundaries, particularly as to property of a public nature. Boardman v. Reed & Ford's Lessees, 6 Pet. 327, 31 U.S. 327, 8 L.Ed. 415; Clark Surveying and Boundaries 421, § 413.

One of the witnesses located the situs of one of the offenses as being within Land Lot No. 134 and stated that he could testify as to its boundaries both by reference to one of the maps introduced in evidence and independent of any map. The United States introduced in evidence the court files and records in the condemnation proceedings whereby title was sought to be acquired to Land Lot No. 134. The condemnation papers showed that funds were deposited in the registry of the court for payment to the former owner whose land was being taken. Because it is not affirmatively shown that the former owner received the award, it is urged that there was no proof that title was acquired and error was committed in admitting the evidence. The right of the appellants to raise the point is doubtful, but whether so or not, there is no merit in it. It cannot be supposed that an owner of property could defeat condemnation by declining to withdraw funds deposited in the registry of a court. The duty of the United States to make payment to the owner was discharged by the payment into court. United States v. Dunnington, 146 U.S. 338, 13 S.Ct. 79, 36 L.Ed. 996; United States v. 412.715 Acres of Land, D.C. N.D.Cal.1945, 60 F.Supp. 576; Brazos River Conservation and Reclamation District v. Costello, 135 Tex. 307, 143 S.W.2d 577, 130 A.L.R. 1220.

Prior to the 1948 revision of Title 18 of the United States Code, the pertinent statutes dealing with the penalties for the crime of rape were as follows:

In the 1948 enactment these provisions were rewritten and now read:

Under the criminal code as it existed before the 1948 revision, the punishment for murder in the first degree was prescribed in these words:

The penalty for transporting in interstate commerce a kidnapped person was fixed by the prior statutes in this manner:

The new provision is:

At the trial the United States Attorney took the position that the change in the statute did no more than permit a sentence for a term of years as well as the penalty of death or life imprisonment for which the former act provided. The Government's view was that the jury, if it agreed upon guilt, should fix the punishment at death or imprisonment; and if it was fixed for imprisonment it then became the function of the court to fix the term, either for a number of years or for life. For Michael Krull it was urged before the District Court that in the event of a guilty verdict the jury was vested with full and complete discretion as to the penalty whether death, life imprisonment, or imprisonment for a term of years. It was contended by George Krull before the District Court that the jury had no prerogative as to the rape counts except to return a verdict of guilty or not guilty. Confronted by this trilemma, the court charged:

George Krull excepted to the charge. The jury returned a verdict of guilty against both defendants with the penalty of life imprisonment on the kidnapping count and the penalty of death on the rape counts inserted in their verdict. The Court sentenced both of the appellants to life imprisonment on the kidnapping count and to death on the rape counts. In the portion of the sentences of Michael Krull, it was said:

A like sentence in the same language was imposed upon George Krull. On the day of imposing the sentences the Court entered an order which, omitting formal parts, is as follows:

While not complaining of the verdicts and sentences on the kidnapping and Dyer Act charges, both of the appellants now assert that it was error to charge the jury that it should fix the penalty upon conviction of rape and, even though the verdict be treated as a recommendation only it was or might have been the basis for the imposition of the death penalty. The position of the Government was pretty well stated for it by the Court in a discussion with counsel after the verdict but before the sentence. The Court commented:

In the absence of a statute the jury has the responsibility of determining whether the accused in a criminal case is guilty or not guilty; and upon the court rests the duty of fixing the punishment. Glover v. United States, 8 Cir., 1906, 147 F. 426, 8 Ann.Cas. 1184. If the jury, without statutory authority, makes a recommendation for clemency, it does not invalidate the verdict and may be disregarded by the court in imposing sentence. Thlinket Packing Co. v. United States, 9 Cir., 1916, 236 F. 109, 149 C.C.A. 319; 23 C.J.S., Criminal Law, § 1407, p. 1100. Under the statute as it existed before the revision 18 U.S.C. (1946 Ed.) § 567, the question as to whether a person convicted of murder or rape should be capitally punished was committed by Congress to the discretion of the jury and to the jury alone. Winston v. United States, 172 U.S. 303, 19 S.Ct. 212, 43 L.Ed. 456; Andres v. United States, 333 U.S. 740, 68 S.Ct. 880, 92 L.Ed. 1055. In the 1948 revision the provisions for the punishment of murder in the first degree were carried forward without change of substance, as was the provision for the punishment for kidnapping. If it had been intended that the jury should continue to have any part in the determination of the penalty to be imposed upon a conviction for rape the Congress, by language used, would have assigned to the jury either a direction to fix the penalty or a discretion to make a recommendation to the court. The section of the new criminal code, 18 U.S.C.A. § 2031, indicates that Congress regarded that a sentence of life imprisonment, as well as the death penalty, might be too severe and so provided that imprisonment might be for a term of years. Lovely v. United States, 4 Cir., 1949, 175 F.2d 312. In so doing it omitted any reference to the qualification by the jury of its verdict of guilty. The intent, we think, of Congress was to leave with the court the sole penalty-fixing power, within the statutory limits, for rape committed within the territorial jurisdiction of the United States.

The district court was in doubt as to whether the power to fix the penalty rested with it or with the jury. It concluded, erroneously we hold, that if the jury did fix the penalty rather than merely recommend, the court could remove the death penalty. The court imposed the death penalty "both on account of the fact that it was imposed by the jury and on account of the fact that the court in its own discretion is of the opinion, under the facts in this case, that such a penalty is authorized * * * ". We think those portions of the jury's verdicts by which it purported to impose death penalties for the rape convictions should be treated as surplusage, and that the verdict should stand as a finding of the guilt of both defendants under each of the two counts charging rape. We so treat it. It cannot be said that the district court so treated it.

We are not confronted with a question as to whether the court should give consideration, in determining a sentence, to a recommendation by a jury of mercy or leniency where not authorized by statute. See 23 C.J.S., Criminal Law, § 1407, p. 1100. The humanitarian spirit which has animated the Congress in authorizing less drastic penalties would seem to preclude the court from giving any effect to a recommendation of the death penalty, the most severe of all penalties. See Andres v. United States, supra. The district court thought possibly the jury verdict death penalty provisions were valid; or if not valid the court would impose the death penalty upon the theory that the jury only recommended it; and the court imposed the death penalty both because imposed by the jury and because the court in its own discretion was of the opinion that such a penalty was authorized. The death penalty should have been imposed if, and only if the court in its discretion was of the opinion that such a penalty was proper without any regard for or giving any effect to that portion of the jury's verdict relating to and purporting to fix the penalties on the rape counts. The sentence on these counts will be reversed and set aside so that the appellants may again be sentenced on these counts in like manner as in other cases where verdicts of guilty, without more, are returned.

The appellants urge that there should be a new trial rather than a remand for re-sentencing because, they say, it would be impossible for the court to put out of mind and not be influenced by the fact that the jury had agreed upon the death penalty while believing it was empowered to do so. We do not agree. Objectivity of approach and ability to reject the irrelevant and immaterial in the making of decisions are inherent in most judicial activity. There is no reason to suppose that this case will be an exception. The remanding of the cause for resentence is the appropriate means for the correction of the error. People of Virgin Islands v. Price, 3 Cir., 1950, 181 F.2d 394.

We think the instruction of the Court that the jury could, if it found the defendants guilty, fix the sentence at death or life imprisonment, or leave to the Court the fixing of the term of imprisonment, was erroneous. Our reasons for this view have been heretofore given. It does not follow that the error requires a new trial. Before there could be any penalty, whether of death, imprisonment for life, or for a term of years, a finding of guilt was required. No tendency to convict would result from the mistaken belief of the jury that it had the sentencing power. The appellants were not prejudiced by the error. A reversal is not required.

The case was given to the jury at 3:55 on the afternoon of February 3, 1956. Between nine and ten o'clock that evening the foreman of the jury requested the marshal to inquire of the Court if they might ask and be informed as to whether, if the defendants were sentenced to life imprisonment it would ever be possible for them to be paroled, and whether there was a minimum time that must be served before parole could be granted. After ascertaining the views of counsel by telephone the Court instructed the marshal to advise the jury that the questions could not be answered. The marshal did so. Later in the evening the jury was recalled to the court room. The Court invited inquiry as to any questions which could be answered. Then occurred the following colloquy:

The jury was excused, Court and counsel conferred, motions for mistrial were made and overruled, and the jury was recalled and they were thus further instructed by the Court:

It is urged that the request of counsel for their views indicated that there was a requirement as to the time to be served before there would be eligibility for parole and that there was a possibility of parole. It is also urged that the Court's comment that there were "some matters covered by law and other matters covered by rule", made as the jury were directed to retire, was an intimation to the jury that by law or by rule there were applicable provisions for parole and fixing eligibility for parole.

The Fourth Circuit has said:

If the jury had fixed the death penalty for kidnapping or if it had the right to fix the sentence for rape we would be confronted with the question as to whether the Court's comment and further instruction were prejudicial error. But since the jury fixed life imprisonment for kidnapping and should have had no part in fixing the penalty on the rape convictions, the errors complained of with respect to the Court's comments on parole, if they be errors, are harmless. 28 U.S.C.A. § 2111.

The appellants insist that there was insufficient evidence to submit to the jury on any of the counts. As to the Lindbergh Act and Dyer Act counts it is argued that there was no substantial evidence that the offenses were committed in the Chickamauga and Chattanooga National Military Park. There is no question as to the stolen car being taken by both defendants with the victim of their assaults from Chattanooga in Tennessee into the Park in Georgia. Nor can there be any real question as to the sufficiency of the evidence to prove the rape of the victim by George Krull, aided and abetted by Michael Krull, in the confines of the Park and this evidence is so free from doubt that we feel no reluctance in refraining from a recital of the sordid details of the testimony by which these offenses were proved.

The contention that there was no substantial evidence to sustain Michael Krull's conviction of rape and George Krull's conviction of aiding and abetting under Count 2 is presented with more plausibility.

From testimony which the jury was entitled to believe, it appeared that the brothers Krull had arrived in Chattanooga four days before the occurrences here related in the car of and in company with Edward Bice. In Chattanooga Bice had a stepbrother, Paul Allen, who was a paraplegic amputee. The four of them were riding around Chattanooga in the Bice car with Bice driving. Michael had a knife. George borrowed Allen's knife. The appellants had an argument between themselves and left the car. Bice drove along slowly. The Krulls came upon the victim in a car belonging to her brother. At the point of a knife in the hands of George Krull she was threatened with death if she screamed. George Krull took the wheel of the car, Michael Krull entered from the other side and they drove away. They passed Bice and Allen in the Bice car. Bice followed. The car with the Krulls and the victim of the kidnapping and the attacks stopped at a store in Rossville, Georgia, where Michael Krull came back and told Bice and Allen that she didn't have any money but could call a lady and get a thousand dollars if they would let her to a telephone. Bice said he wanted no part of that and made a recommendation to "get rid of the car and be done with it". The two cars moved on and in the same direction, that is, South. Bice and Allen, following the other car, went on past Oglethorpe. Bice and Allen lost track of the other car which George Krull was still driving after it entered the park. After leaving Rossville, two miles North of the boundary of the park, the appellants conversed in a foreign language. After, as the victim testified, "we didn't drive too far", Michael Krull compelled her to get into the back of the car, from which the back seat had been removed, and made a criminal attack upon her. In her words, "He assaulted me for ever so long". Then Michael Krull said to his brother "I'm through with her, do you want her". The car slowed down, perhaps stopped, and the brothers changed places; Michael Krull driving the car and George Krull criminally attacking the victim. Bice and Allen drove around the park and came upon the other automobile on Snodgrass Hill which is in the park and about four and a half miles from Rossville. The attack upon the victim by George Krull had not then been completed. George Krull took the victim from the car and again made an assault of rape upon her.

This is the proof from which a determination is required on the sufficiency of the evidence on Count 2 of the indictment. It is no longer open to question that

The language quoted was adopted and applied by this Court in Lloyd v. United States, 5 Cir., 226 F.2d 9. Among other decisions illustrative of the rule are Humes v. United States, 170 U.S. 210, 18 S.Ct. 602, 42 L.Ed. 1011; Crumpton v. United States, 138 U.S. 361, 11 S.Ct. 355, 34 L.Ed. 958; Ward v. United States, 5 Cir., 1952, 195 F.2d 441; Pullin v. United States, 5 Cir., 1939, 104 F.2d 57; Beland v. United States, 5 Cir., 1938, 100 F.2d 289, certiorari denied 306 U.S. 636, 59 S.Ct. 485, 83 L.Ed. 1037; Riddle v. United States, 5 Cir., 1922, 279 F. 216. Applying this test to the record submitted to us we find there was substantial evidence to support the verdict of guilty on Count 2 of the indictment as to both appellants.

The sentence and judgment on the verdict of guilty of the charges of Counts 2 and 3 of the indictment are reversed and the cause is remanded for the re-sentencing by the Court of the appellants upon the verdicts of guilt returned by the jury on these counts. In all other respects the sentence and judgment are affirmed. For the re-sentencing of the appellants on the Count 2 and Count 3 convictions in accordance with the views herein expressed the cause is

Reversed and remanded.

CAMERON, Circuit Judge (concurring in part and dissenting in part).

I concur in the able opinion of the majority except as it orders remand of the case for re-sentence under Counts 2 and 3 of the indictment. It seems perfectly clear to me that the trial Court was of the opinion that the death penalty was proper, without any regard for or giving any effect to, that portion of the jury's verdict relating to the penalties on the rape counts. I think, therefore, the judgment appealed from, entered after a most carefully conducted trial in which all rights of the accused were scrupulously safeguarded, should be affirmed in all of its parts.