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UNITED STATES v. AMMIDOWN

April 5, 1972

UNITED STATES of America
v.
Robert L. AMMIDOWN


Sirica, Chief Judge.


The opinion of the court was delivered by: SIRICA

SIRICA, Chief Judge.

 This matter has been brought before the Court by the defendant, Robert L. Ammidown, through his counsel on motions to suppress evidence sought to be used by the government in the above-captioned proceeding.

 Defendant Ammidown first seeks the suppression of several letters sent by him to various people while he was undergoing a court-ordered mental observation at Saint Elizabeths Hospital in Washington, D.C.

 It appears that during this time a staff-psychologist advised the defendant to re-establish himself with those people who could help him clarify his present situation. The letters were sent pursuant to this advice. Although the defendant sent several letters out by the facilities provided, he also sent out at least two letters by way of a friend, thus avoiding the established procedure. It is these two letters in particular the government seeks to use and the defendant to suppress. Relying upon Title 18 U.S.C. Section 4244 and Title 21 D.C. Code Section 561, the defendant contends that either one or both of these statutes confer "a broad confidentiality" upon the above described letters. The issue presented is whether it is a violation of the above statutes for the government to use those letters at the defendant's trial on the question of guilt or innocence.

 This Court cannot agree with the defendant's interpretation of these statutes. Nothing in either of these statutes suggests to the Court that any of these letters sent out by the defendant are protected from use by the government in the proceedings now pending. This is especially true of the two contested letters, the delivery of which was surreptitiously effected. It is obvious that the content of these two letters was to be hidden from the view of the hospital authorities including the staff-psychologist. What is suggested by this behavior though, is that the letters had no connection with the mental evaluation then taking place. For these reasons, the defendant's letters will not be suppressed, but upon their submission, will be admitted into evidence upon the issue of defendant's guilt or innocence.

 The defendant next moves to suppress statements made by him to officers of the Metropolitan Police Department on October 2 and 7, 1971, because he claims they failed on both occasions to advise him of his constitutional rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). In framing the issue presented by defendant, it is important to note that during the time these statements were taken, Mr. Ammidown was not a suspect, but rather an "eye-witness" to the rape-slaying of his wife, Linda. The issue, then, is whether the police must admonish witnesses of their constitutional rights whenever both the police and the witness are mutually desirous of having the witness reveal his knowledge to the police. After careful consideration of the circumstances surrounding the taking of both statements, the Court concludes that defendant Ammidown's contention is without merit.

 It is clear that Miranda has provided procedures which ensure the Fifth Amendment protections against self-incrimination, but it is equally clear that the privilege against self-incrimination attaches only when the individual is subjected to police interrogation while he is in "custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 445, 86 S. Ct. at 1612. Ammidown was not in custody. As indicated above, Mr. Ammidown was not a "suspect," nor believed implicated in the death of his wife. On the contrary, the police considered Mr. Ammidown to be the only witness who could identify his wife's assailant. That he himself did not think he was a suspect is evidenced by his statement in open court regarding certain tests given him by the police during those early morning hours of October 2:

 
I volunteered for these tests. In fact, I told them that anything else they wanted to do, just feel free to do it. I would have no objections. So I voluntarily subjected myself to any test that they would desire to give me. (Tr. 53) *fn1"

 The two tests to which the defendant was subjected, are part of standard operating procedure and are routinely given by the police in cases of this nature.

 Of further significance is the fact that the police were in complete conformity with the recent standards enunciated in United States v. Comer, 137 U.S. App. D.C. 214, 421 F.2d 1149 (1970), and Allen v. United States, 129 U.S. App. D.C. 61, 390 F.2d 476 (1968). In taking the October 2 statement and its "sequel" on October 7, the police were engaged in a routine inquiry calculated to obtain facts necessary for an intelligent investigation. They had not focused upon a subject nor were they staging an interrogation. For the above reasons, the Court finds that the statements of October 2 and 7, 1971, were not taken illegally and therefore they are admissible.

 Defendant next seeks the suppression of evidence gained by the police while impersonating the defendant on the telephone at his place of employment and during a subsequent rendezvous with an unknown and suspicious caller. Further objection is made to the employment of a "consent monitoring device" which recorded the above-described phone calls. Relying upon Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), Title 47 U.S.C. Section 605 and the "fruits of the poisonous tree theory," defendant Ammidown contends that evidence gained from these phone calls should be suppressed.

 This Court finds defendant's argument unsupported in law or fact. The following facts are relevant to this finding: at the time the first phone call was received, Mr. Ammidown was not suspected of any wrongdoing and he was still considered a "witness." He was not immediately available and there was at that time justifiable concern for his safety. Indeed, Dr. Xavier Mena, the Acting Deputy Director of the Job Corps, who received the first phone call, at first believed that he was talking with the killer. (Tr. 221) *fn2"

 The Court notes that the telephone calls for Mr. Ammidown, a branch level employee, were suspicious from the outset, coming as they did directly to the offices of the Director of Job Corps for the announced purpose of purchasing the defendant's car. It was Dr. Mena who first impersonated Mr. Ammidown. It was he who called the police, and it was he, a non-police agent, who precipitated the chain of events which disclosed an extremely dangerous extortion plot which necessitated police intervention. Indeed, the police did not engage in the impersonation until an actual meeting was arranged by the caller and Dr. Mena. The police, suspicious and unable to attach an explanation or reason for the calls, asked Dr. Mena ...


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