The right to counsel includes the right to confidential attorney-client communications. Adams v. Carlson, 488 F.2d 619, 631 (7th Cir. 1973); Krull v. United States, 240 F.2d 122, 126 (5th Cir.), cert. denied 353 U.S. 915 (1957). The right to private and confidential communications is not absolute, however, and is subject to reasonable regulation.
One facet of the Sixth Amendment protection is the right of a defendant to have private and confidential communications with his attorney: "The prosecution is not entitled to have a representative present at a conference between an accused and his counsel to overhear their conversation." Krull v. United States, 240 F.2d 122, 126 (5th Cir. 1957). And "[t]he 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."
Such cases usually involve a verdict accompanied by a jury request for leniency. See e. g., Cook v. United States, 379 F.2d 966 (5th Cir. 1967); Krull v. United States, 240 F.2d 122 (5th Cir. 1957); United States v. Lee, 532 F.2d 911 (3rd Cir. 1976); Thlinket Packing Co. v. United States, 236 F. 109 (9th Cir. 1916). Such a request is normally regarded as surplusage. 8A Moore's Federal Practice ยถ 31.02[3].
Petitioner cites to the case of Krull v. United States, to support his contention that the government was required to prove that the location where the crime was committed was within the jurisdiction of this Court. 240 F.2d 122 (5th Cir. 1957). This requires only a brief response, as the facts of Krull are significantly different from Petitioner's case. Specifically, Krull involved a charge and conviction for rape, which is made a federal offense only if the rape occurs within the "special maritime and territorial jurisdiction of the United States."
In Arizona the jury is without statutory authority to consider the sentence or punishment in a verdict of second degree murder. In Krull v. United States, 5 Cir., 240 F.2d 122, the court said: "* * * 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. * * *" 240 F.2d at 133
United States v. Leighton, 386 F.2d 822 (CA2 1967), on which the Court of Appeals relied, involved an embargo order preventing a defendant from consulting his attorney during a brief routine recess during the trial day, a matter we emphasize is not before us in this case. See United States v. Schrimsher, 493 F.2d 848 (CA5 1974); United States v. Crutcher, 405 F.2d 239 (CA2 1968), cert. denied, 394 U.S. 908 (1969); see also Krull v. United States, 240 F.2d 122 (CA5), cert. denied, 353 U.S. 915 (1957). Cf. Pendergraft v. State, 191 So.2d 830 (Miss. 1966).
We are unpersuaded that the area is so uncertain as to render counsel's advice ineffective. Although the maximum penalty to which an accessory after the fact is subject in cases where the principal is sentenceable to life imprisonment is not directly at issue here, we can speculate that since the death penalty is a more severe punishment than life imprisonment, see Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Krull v. United States, 240 F.2d 122, 134 (5th Cir. 1957), and since the maximum sentence of an accessory after the fact to a capital offense is ten years, the maximum penalty to which an accessory after the fact would be subject where the maximum sentence of the principal is life imprisonment would be no more than ten years. V. BURIAL SITE PHOTOGRAPHS
In the usual case, the jury has no authority to recommend what sentence should be imposed, but it is not uncommon that a plea for mercy accompany the verdict. Generally, such a recommendation does not affect the validity of the verdict and may be disregarded as surplusage.Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975); United States v. Phillips, 426 F.2d 1069 (2d Cir.), cert. denied, 400 U.S. 843, 91 S.Ct. 86, 27 L.Ed.2d 78 (1970); Krull v. United States, 240 F.2d 122 (5th Cir.), cert. denied, 353 U.S. 915, 77 S.Ct. 764, 1 L.Ed.2d 668 (1957). See also 2 C. Wright, Federal Practice and Procedure ยง 512.
It is axiomatic that the prosecution must always prove territorial jurisdiction over a crime in order to sustain a conviction therefore. We held in Krull v. United States, 5 Cir. 1957, 240 F.2d 122, 127, a case involving a location (Chickamauga and Chattanooga National Parks, Georgia) allegedly under the exclusive jurisdiction of the United States, that one element of proof required of the prosecution is "to establish the situs where [the crime was] committed and show that such situs was within the jurisdiction of the United States." But the argument of the appellants fails to take into account the factor of judicial notice, which is a valid substitute for proof in connection with jurisdictional questions as well as other matters of evidence.
The record is well saturated with evidence of guilt. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Krull v. United States, 240 F.2d 122, 137 (5th Cir. 1957) cert. denied 353 U.S. 915, 77 S.Ct. 764, 1 L.Ed.2d 668.See United States v. Turley, 352 U.S. 407, 417, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957); Dixon v. United States, 295 F.2d 396 (8th Cir. 1961).