Castle, Chief Judge, Knoch, Senior Circuit Judge, and Fairchild, Circuit Judge.
KNOCH, Senior Circuit Judge.
Thomas William Hale, defendant-appellant, was convicted by jury trial of violating Title 18, United States Code, § 2312, unlawful interstate transportation of a known stolen motor vehicle. He was sentenced to serve one year in custody.
Defendant contends that admission of his incriminating statements in evidence was reversible error.
At a hearing on defendant's motion to suppress certain of his statements as evidence, the following was disclosed. Sheriff Hollis Bridenhagen of Door County, Wisconsin, testified that on October 25, 1966, unarmed with any warrant, he called on the defendant whom he knew as "Michael J. Wright" at defendant's home in Egg Harbor, Wisconsin. He said that he displayed his credentials and the defendant agreed to follow the Sheriff (in his own automobile) back to the Sheriff's office in Sturgeon Bay, Wisconsin, to discuss some "bad checks."
As they entered the office, the Sheriff asked the defendant whether the defendant was aware of the stack of cancelled checks on the desk. The defendant said that he had written them and that his name was not "Michael J. Wright." When the Sheriff asked about the automobile the defendant had been driving, the defendant said, "No, it's not my car either."
The Sheriff testified further that:
Before we started talking about the checks, I told him that whatever he said could be used against him, and things like that, what goes with his rights. But at the time he told me the car was not his, it was only about two sentences about the check and about the car. Immediately upon he telling me about the automobile not being his, I said: "You are in trouble, and I do not want you to make another statement; I will see that you get an attorney," and I put him back in jail.
He testified that the entire conversation took no longer than ten minutes. The defendant himself estimated the time as approximately ten or fifteen minutes. The District Court determined that the defendant had been inadequately informed of his rights and that no party could offer in evidence any of the defendant's above described statements.
James O. Ebbeson of Sturgeon Bay, Wisconsin, an attorney at law, testified that he was appointed to represent the defendant by Door County Judge Edward G. Minor on October 25, 1966; that he conferred with the defendant "for about an hour and a half, maybe two hours," the same day; that he advised the defendant to co-operate in every way with the law enforcement officers; and that it was his intention to permit the law enforcement officers to interrogate the defendant.
He testified further that he told the Sheriff that the defendant and he had discussed the matter at great length and intended to co-operate with the Sheriff's office and with any other office in the State of Wisconsin, including the F.B.I.
The following morning Mr. Ebbeson was told that law enforcement officials including a Mr. Converse of the F.B.I. were coming from out of town to see the defendant, and, later that day, Mr. Ebbeson advised two nonresident police officers that his client was prepared to co-operate in any way. He testified that it was his intention to be present at the interrogation and that, although he said nothing to that effect, he assumed he would be called when Mr. Converse arrived. He said he had told the defendant early in his interview to say nothing unless counsel were present. He returned to his office. He was not called. The defendant evidently ignored the advice about having counsel present.
At the trial Edward E. Converse, then retired, who had been an F.B.I. special agent in October 1966 testified that he saw the defendant on October 26, 1966, at 2:25 P.M. At 3:30 P.M. the defendant signed a statement which Mr. Converse testified was entirely volunteered and not the result of interrogation. During this time, defendant was fully advised of his rights and executed a written waiver. While notes of his statement were being transcribed, the defendant left the room for about ten minutes to have a photograph made. He returned, read the statement, and signed it. He spent about twenty-five minutes in actually making his statement, in which he said that one Millard F. Madden permitted the defendant to use his automobile at Orange Park, Florida, to do an errand for Madden, but not to take the car out of the State of Florida, that after taking the car, the defendant began to drink, found himself about sixty miles away, and just kept going, without notifying the owner, through several states, ending his trip in Wisconsin by mid-August 1966, where he used the name of Wright and asserted ownership of the car.
Mr. Ebbeson testified that he was a little disappointed (and told the defendant that he would have liked to have been present) but that defendant was a very intelligent man with a college background; that he reviewed with the ...