UNITED STATES of America, Plaintiff-Appellee, v. Edward Joseph FOLEY and John Joseph Edler, Defendants-Appellants.
Nos. 494, 495, Dockets 83-1255, 83-1256
United States Court of Appeals, Second Circuit
May 23, 1984
As Amended July 3, 1984
735 F.2d 45
Argued Nov. 29, 1983.
Choudhury‘s objection to the special verdict question on retaliation stands on weak underpinning: The wording employed by the judge differed in no material respect from the Proposed Special Interrogatory which appellant submitted to the court, and which read:
Did defendant ... discriminate against Professor Choudhury in the terms or conditions of his employment in retaliation against him for having filed or pursued to settlement charges of employment discrimination?
Reading the retaliation question in context, as appellant urges us to do, we do not think it can reasonably be argued that Judge Glasser “with[drew] from the jury‘s consideration a valid theory” of recovery. Cutlass Productions, Inc. v. Bregman, 682 F.2d 323, 328-29 (2d Cir.1982). On the contrary, the discrimination and retaliation questions articulated the distinction we have taken some pains to elaborate. The former question dealt specifically with discrimination “on account of race or color“, while the latter was predicated on discrimination “in retaliation for having ... filed a charge of employment discrimination....” As we have already noted, we find no merit in the hairsplitting suggestion that it was error even to use the word “discrimination” in the retaliation inquiry.
We therefore conclude that Choudhury‘s claim for retaliation was framed for the jury with sufficient precision. We are not, of course, in a position to second-guess the jury‘s resolution of conflicts in the testimony adduced, and appellant does not suggest that the verdict was contrary to the weight of the evidence. Accordingly, we affirm the judgment of the district court dismissing Choudhury‘s
Henriette D. Hoffman, Legal Aid Society, Federal Defender Services Unit, New York City, for defendant-appellant Edler.
Carmine J. Perrotta, New York City, for defendant-appellant Foley.
Barry A. Bohrer, Asst. U.S. Atty., S.D.N.Y., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Peter B. Sobol, Asst. U.S. Atty., New York City, of counsel), for plaintiff-appellee.
Before LUMBARD, WINTER and PRATT, Circuit Judges.
GEORGE C. PRATT, Circuit Judge:
Defendants appeal their convictions for smuggling,
Defendants, both longshoremen, were caught by customs agents at about 12:14 A.M. entering two cars illegally parked on Pier 90 in Manhattan near where the ocean liner Queen Elizabeth II had been berthed only a few hours earlier. Inside the cars
After questioning by the agents, defendants were given summonses to appear the following afternoon at the office of the United States Attorney for the Southern District of New York. Anticipating formal charges and arraignment, an Assistant United States Attorney (AUSA) notified the magistrate, who in turn notified a legal aid attorney that he would be required to represent both defendants at their arraignment scheduled for 5:00 P.M. Immediately, the legal aid attorney called the AUSA and requested that his clients not be interviewed. Ignoring the request, the AUSA kept both the magistrate and legal aid counsel waiting for two hours while he interviewed the defendants. Only then did the AUSA permit the arraignment to go forward.
Before considering our difficulties with the prearraignment interview, we briefly dispose of the other two issues raised on appeal. First, both defendants argue that the district judge erred when, in response to a jury request that the trial judge explain “very simply the facts” of the substantive counts, he expressed his opinions as to the weight of the evidence bearing upon some of the elements in the case. For example, he opined that, as to whether the merchandise was contraband, “I think it‘s perfectly clear from the evidence, and I don‘t see how you can come to any serious difficulty in concluding that this fancy merchandise was contraband, that is, that it wasn‘t legally in the United States when it was on that pier in those two cars.” He further observed that the evidence about the merchandise being contraband “is almost uncontradicted” and “should be very persuasive in your opinion“.
Of course, a district judge may not usurp the jury‘s fact-finding functions, but we
There is no claim that the trial judge either mischaracterized or unfairly summarized the evidence, and as we recently noted:
The trial judge in a federal court may summarize and comment upon the evidence and inferences to be drawn therefrom, in his discretion * * *. So long as the trial judge does not by one means or another try to impose his own opinions and conclusions as to the facts on the jury and does not act as an advocate in advancing factual findings of his own, he may in his discretion decide what evidence he will comment upon. His fairness in doing so must be judged in the context of the whole trial record, particularly the evidence and the arguments of the parties.
United States v. Lartey, 716 F.2d 955, 966 (2d Cir.1983) (quoting United States v. Tourine, 428 F.2d 865, 869 (2d Cir.1970), cert. denied, 400 U.S. 1020 (1971)). Accord Quercia v. United States, 289 U.S. 466, 469 (1933). Viewing the supplementary instructions in the context of the entire case, we hold that the trial judge did not in this instance exceed the bounds of his proper function.
Second, Edler contends that statements he made to the customs officers after they stopped him and Foley on the pier should have been suppressed by the district court for failure to give him a Miranda warning. The court found a Miranda warning was not required, because the statements had been voluntarily made pursuant to a lawful investigative stop, see Florida v. Royer, 460 U.S. 491, 497 (1983); Terry v. Ohio, 392 U.S. 1 (1968), at a time when Edler was neither under arrest nor subject to custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 444 (1966); Oregon v. Mathiason, 429 U.S. 492, 495 (1977); United States v. Ross, 719 F.2d 615, 621-22 (2d Cir.1983). Since the district judge‘s findings on these matters are not clearly erroneous, we find no error in his refusal to suppress. See United States v. Ross, 719 F.2d at 621-22; United States v. Hall, 724 F.2d 1055, 1060 (2d Cir.1983).
Finally, we turn to the pre-arraignment interview. Prosecutors, of course, like to have statements from a defendant, and much of our criminal jurisprudence in recent years has reflected the determination of courts and legislatures to develop procedures that will prevent unfair use of a defendant‘s statements without unduly hampering legitimate and fair law enforcement efforts. In this struggle a defendant‘s “right to counsel” has played a significant role. Courts have barred the use in evidence of a defendant‘s statements elicited by investigating officers or prosecutors not only in violation of a defendant‘s fifth amendment right to have counsel present during questioning, e.g., Edwards v. Arizona, 451 U.S. 477 (1981); Tague v. Louisiana, 444 U.S. 469 (1980); United States v. Little, 647 F.2d 533, 534 (5th Cir.1981); United States v. Howard, 426 F.Supp. 1067, 1071 (W.D.N.Y.1977), but also in the absence of a clear waiver of counsel after the sixth amendment right to counsel “attaches“, e.g., Brewer v. Williams, 430 U.S. 387, 404-06 (1977); United States v. Mohabir, 624 F.2d 1140, 1151 (2d Cir.1980); United States v. Satterfield, 558 F.2d 655, 657 (2d Cir.1976); United States v. Lilla, 534 F.Supp. 1247, 1280-81 (N.D.N.Y.1982).
As a matter of practice and policy the United States Attorney‘s Office for the Southern District of New York, apparently alone in the federal system, see United States v. Duvall, 537 F.2d 15, 23 (2d Cir.1976), cert. denied, 426 U.S. 950 (1976);
Edler, on the other hand, contends in general that the pre-arraignment interview practice is a technique that obtains damaging admissions from uncounseled defendants and commits them to positions which may discourage their later taking the witness stand when they would be subject to cross-examination based upon the statements elicited during the interview. He complains specifically that his pre-arraignment interview was particularly egregious, because it was conducted by the AUSA despite a specific request by legal aid counsel that the government not question him.
We think that this practice of routinely conducting pre-arraignment interviews raises serious constitutional questions, see United States v. Perez, 733 F.2d 1026, 1036 (2d Cir.1984); Duvall, 537 F.2d at 23-24; Mohabir, 624 F.2d at 1150-51, as well as ethical ones, see
Most, if not all, of the practice‘s claimed advantages would appear to be equally available immediately after arraignment, when a defendant would have the benefit of advice from his attorney and would be less vulnerable to psychological manipulation by the prosecutor. Cf. United States v. Perez, 733 F.2d at 1036. Moreover, we agree with defendant that the interview does have two effects which, more than coincidentally we think, aid the prosecutor and harm the defendant. By interviewing a defendant before he is assigned an attorney, the prosecutor may: (1) obtain admissions from the defendant which would not be forthcoming once an attorney enters the picture, and (2) commit the defendant to a “story” or position that would restrict his options at trial, including his option to testify in his own behalf. Were it necessary to our decision here, we might well be required to hold that any benefits accruing to the prosecutor from the interview are outweighed by the need to protect uncounseled defendants’ constitutional and legal rights.
Our concern is enhanced by the fact, acknowledged at oral argument, that when a defendant is known to be represented by private counsel the government does not conduct a pre-arraignment interview. In effect, therefore, the practice is invoked only against a defendant who is poor and unrepresented. See United States v. Perez, supra; United States v. Restrepo-Cruz, 547 F.Supp. at 1061. Another panel of this court recently expressed its concern about the propriety of this practice. United States v. Perez, supra. While it upheld suppression of the defendant‘s statements on other grounds, the panel, through Judge Cardamone, observed that the pre-arraign
Moreover, even assuming the error was not harmless, we would nevertheless be left with the fact that Edler‘s statements in the interview were used at trial only on his cross-examination. It has been held that while evidence obtained in violation of a defendant‘s Miranda rights is subject to suppression from use in the government‘s case in chief, it may nevertheless be used to cross-examine the defendant. Oregon v. Hass, 420 U.S. 714 (1975); Harris v. New York, 401 U.S. 222 (1971); see also United States v. Havens, 446 U.S. 620 (1980) (same for evidence obtained in violation of fourth amendment); cf. New Jersey v. Portash, 440 U.S. 450 (1979) (if use of defendant‘s prior statements would clearly violate his fifth amendment right against self-incrimination, statements not admissible on cross-examination); United States v. Brown, 699 F.2d 585, 588-91 (2d Cir.1983) (evidence obtained in violation of defendant‘s express sixth amendment right to counsel not admissible on cross-examination). Whether that principle should govern in the present context is a close question which has been neither briefed nor argued. One might think at first blush that if a statement obtained in violation of Miranda rights or the fourth amendment can be used to impeach a defendant, then a fortiori one obtained merely in breach of ethical principles could be similarly employed. However, the issue is not as simple as first appears because of the unique chilling effect the pre-arraignment interview may have on a defendant‘s right to testify, particularly when combined with the potentially discriminatory impact the Southern District‘s policy may have upon indigent defendants. We hope that restraint by the United States Attorney will make it unnecessary for us to explore these difficult issues in the future.
The judgments of conviction are affirmed.
LUMBARD, Circuit Judge, concurring:
Although I concur in affirmance of the convictions, I would rest the decision on somewhat different grounds.
I agree that the AUSA should have refrained from questioning Edler at the pre-arraignment interview once he knew that the Legal Aid assigned counsel had requested that there be no questioning. But I cannot agree that the introduction at trial of the statements obtained during the interview was harmless. Nevertheless I would hold that the evidence was properly admitted on cross-examination under Harris v. New York, 401 U.S. 222 (1971).
Two statements are at issue here. First, Edler testified at trial that when the customs officers stopped him on the pier holding a duffel bag full of cheese, the bag had just fallen off the truck. He stated that he picked it up with no idea of its contents, and carried it three or four feet from the truck to determine if it was garbage to be thrown out, or goods to be placed on the ship. On cross-examination, that testimony was impeached with Edler‘s pre-arraignment statement to AUSA Sobol that he had carried the duffel bag thirty feet from where it lay when he found it. Second, Edler testified at trial that at about 5 P.M. on the day in question, he drove his own car onto the pier and left it there, returning later that night to drive Foley‘s car home for him, as Foley was too drunk to drive it himself. On cross-examination, that testimony was impeached with Edler‘s pre-arraignment statement to AUSA Sobol, in response to the question how his car came to be on the pier that night, that “probably Abie the Jew brought it on.”
My colleagues conclude that any error in introducing those statements on cross-examination of Edler was harmless, because all the other evidence against both defendants was strong, and the statements themselves were “relatively innocuous.” As to the testimony concerning the distance
Consequently, in my opinion it would have been reversible error had the government been permitted to use the statement in its direct case. However, as the government used the statements only on cross-examination, I would conclude that under Harris v. New York, supra, such use was not reversible error, and would affirm the conviction on that basis.1
In addition, I think the court should refrain from comment on the general propriety of pre-arraignment interviews. The United States Attorney is undoubtedly aware that where, as in this case, the interview is conducted in an improper manner or occasions too long a delay in arraignment, the use of any fruits of that interview may be jeopardized. As individual allegations of impropriety come before us, we act on the facts of the case, in accordance with applicable law, and that should be enough. Unless we are prepared to hold that pre-arraignment interviews are categorically barred—which on at least four occasions we have stopped short of doing, see majority opinion, supra; United States v. Perez, 733 F.2d 1026, 1036 (2d Cir.1984); United States v. Mohabir, 624 F.2d 1140, 1150-51 (2d Cir.1980); United States v. Duvall, 537 F.2d 15, 23 (2d Cir.1976)—I think little is to be gained by general exhortations in that direction.
Furthermore, I do not believe any sweeping prohibition is justified or is wise. Not infrequently, a pre-arraignment interview results in a modification of the charge to be filed or even some arrangement to postpone or forego charges entirely in return for cooperation with the government. Such a development may well be to the advantage of the detainee as well as to the government. The mere fact that some prospective defendants may in the course of the interview make damaging statements or commit themselves to a story that restricts their options at trial hardly seems to me a persuasive counterargument, as long as other procedural safeguards—e.g., administering a Miranda warning and respecting the requests of counsel to stop questioning the detainee—are followed.
Notes
However, the interrogation of Edler in contravention of counsel‘s specific request did violate the right to counsel created by the Court in Miranda, “not to vindicate the constitutional right to counsel as such, but * * * ‘to guarantee full effectuation of the Fifth Amendment privilege against self-incrimination * * *‘” Johnson v. New Jersey, 384 U.S. 719, 729 (1966). Kirby v. Illinois, 406 U.S. 682, 689 (1972). This conclusion presumes that counsel as an agent of the defendant may assert defendant‘s Miranda rights to have counsel present, at least until that assertion is knowingly and directly repudiated by defendant. However, I think that presumption is implicit in cases holding that pre-arraignment interrogation of a defendant without counsel present, despite counsel‘s specific request to be present, is a violation of defendant‘s Fifth Amendment rights, even when defendant has himself knowingly waived his right to counsel. See United States v. Miller, 432 F.Supp. 382 (W.D.N.Y.1977); United States v. Howard, 426 F.Supp. 1067, 1071 (W.D.N.Y.1977); cf. United States v. Wedra, 343 F.Supp. 1183, 1185 (S.D.N.Y.1972); United States ex rel. Magoon v. Reincke, 304 F.Supp. 1014, 1019 (D.Conn.1968), aff‘d, 416 F.2d 69 (2d Cir.1969) (same with regard to defendant‘s Sixth Amendment right to counsel). But as evidence obtained in violation of a defendant‘s Miranda rights is admissible on cross-examination under Harris v. New York, supra, such use here was not reversible error.