United States v. Israel Matos
444 F.2d 1071
7th Cir.
1971
Check Treatment

*1 Pell, Judge, Circuit concurred and KILEY, STEVENS, Before PELL and opinion. filed an Judges. Circuit

Stevens, Judge, Circuit dissented opinion. and filed KILEY, Judge. Circuit Matos,

A post- found defendant employee, guilty, al separate under two indictment, counts of the of two thefts from the mail in violation of 18 U.S.C. appealed 1709. Matos § has judgment on the verdict and concurrent years sentences five on each count. We reverse and remand for a new trial. Matos had employee been a years more than when ar- rested for theft of two watches from packages in the mail. He was at the working engaged as a dockman loading sacks of mail into Hawaii-bound *2 brought warnings, conveyor requested the Miranda a trailers from a law- yer sign from a lead- and to a Ma- the sacks the trailer chute refused to waiver. attorney’s objection ing anticipatory post There is evi- tos’ and from office. the subject motion occasions for mistrial were overruled. And dence that on the two government attorney postal inspectors, promised the of to the indictment three dock, resumption place avoid the ob- “trouble from a hidden above waters” substantially un- trial. served is Matos. It disputed days they saw both concluded, After the dire was voir pick package marked” Matos a “test testified, presence Mesics in the containing package watch, which a jury, giving about the of Miranda warn- specially fallen mail identifiable ings by Matos, Bottker, on re- and bags partially open that had been quest, emptied pockets and uncovered by Matos, inspectors. the on both oc- the the second watch taken on occasion. casions, placed package the inside then Inspector Bottker then corroborated the behind a trailer and mound went testimony. Mesics’ He told Matos he was bags, apparently out of the view warnings him, arrest, under read the to inspectors did notice The signature and offered him for a waiver top movement at of the load. The rights The form. at- placed package in test on the torney asked, “Now, this, then after missing first occasion from the sack anything?” tell defendant Bottker

when the trailer in arrived Honolulu.1 answered that Matos “indicated he did The watch on the second occasion was not desire to make a statement.” Matos’ by turned over Matos to the attorney objected and moved for a mis- they apprehended after him. The trial. district court overruled the motion, and denied the I. denied a to motion caution the disregard to unresponsive part only appeal issue on is a Bottker’s answer. new trial should be ordered because Ma- right tos’ Fifth Amendment to remain The violation of Matos’ Fifth by silent was violated admission into right Amendment plain. to silence is unresponsive evidence of an statement Arizona, Miranda v. by postal inspector question by to a n. 16 L.Ed.2d 694 government attorney. (1964); Nielsen, States v. F.2d 1968). Inspector Mesics, testifying gov- constitutional error admit chief, began the testi ernment’s case in tell mony that Matos desired not to Inspector in make Bottker’s of- statement. We hold that in Matos’ post building, fice Fifth office to which Amendment not Matos incriminate being appre- himself was attorney, hended. violated anticipating Matos’ admission waters,” “troubled into moved inspector’s for a voir dire hearing. comment, hearing At compounded the error was de- veloped Matos, having given the trial court’s refusal to instruct guilty today, “In verdict of was to Counts accord with our decision arguments impermissible penalize and II. briefs are an individual II, proof exercising privi- confined to Count his Fifth Amendment lege alleged police which the error when he is oc under custodial in- terrogation. concurrent, prosecution may not, curred. The sentences were but the does seek to sus use at the fact tain Matos’ conviction on stood Count I. Since mute or claimed his judgment be the face reversed on of accusation.” Count II, Matos should new n. trial as to S.Ct. at 1625. both counts. in- he had been lunch Bottker articles which to take lost structed as evidence. considered should person, platform office found give supervisor. He them to not to II. arrested before that he was testified *3 argues government go platform of- The had a chance harmless, it was is error what occurred fice. California, citing Chapman v. Matos clear whether record is not The (1967). 18, 824, L.Ed.2d 705 17 87 S.Ct. English. not understand or could could government Chapman has the Under filled out evidence There was demonstrating beyond to us burden of English. job Yet at application in his the constitutional a reasonable doubt that Span- inspectors called a the conference to Matos’ con error did not contribute discussion interpreter aid their ish ; constitu that “before a federal viction tes- him. Two character witnesses harmless, held tional error can be good reputation tified to Matos’ declare a belief court must be able to integrity. honesty truthfulness, beyond harmless a reasonable that was at The doubt.” at Id. 87 jury question for the The vital meeting relies, for its bur credibility in Matos’ his was den, upon the “conclusiveness” that he did not intend to steal the watch. so as to invoke evidence Matos Although there sufficient Harrington the rule in v. 395 jury explana for a to discredit Matos’ U.S. 89 23 284 actions, cannot, tion of his under the we (1969), and this court’s decisions above, mentioned circumstances declare Allsenberrie, 424 F.2d United v. States that, a belief the Bottker absent unre (7th 1970); Cir. United States highlighted sponsive Matos’ answer — Wick, (7th Cir.) 416 F.2d cert. counsel’s forced and motions denied 396 cautionary for mistrial instruction (1969); L.Ed.2d 425 States in front of the could have —no Sutt, (7th 415 F.2d Cir. entertained a reasonable Ma 1969); Franke, and United States tos, intercepted had not been 1969). applica F.2d 958 clock, time would have turned pecu tion of the harmless error rule is watch after lunch. liarly dependent on the case. facts each government’s reliance on Allsen- Matos’ defense was that he had no berrie, Wick, Sutt, and Franke is mis- stealing intention of the watch. He tes- Allsenberrie, placed. In defendant ad- working accidentally tified that while agents knowledge mitted to stepped on a box which contained the of cartons stolen commerce but re- watch, picked and that he the watch they were, relying fused to tell where put pocket init with the inten- right on his Fifth Amendment to remain returning tion platform it to the of- silent. court ruled that the com- He fice. further testified that after he ment on the silence was harmless since picked up supervisor the watch the dispute 'there was no that defendant was go told him to to lunch and that he was ship- the “dockman” who handled the apprehended the second floor ment cartons which were located “punching clock after out” for lunch. search, in a valid and defendant ef- inspector’s of- fectually of the admitted he knew fice where he was arrested and con- missing In whereabouts cartons. fronted the three agent Wick, an testified that he heard agent defendant, Matos stated after Mi- that he did not ask take the another supervisor warnings, watch to the randa he obtained because the su- pervisor notes, re- and that him to counterfeit charged. This fense 18 U.S.C. See answer. conversation § fused to States, App. argument Byram “briefly v. United mentioned” unnecessary incidents, Adducing (1905). jury. held these This court D.C. 546 overwhelming testimony opens the door to evidence” Miranda “amidst including against Wick, positive possible prejudice More of a defendant. over, identifications, opened, risks arise could not have contribu- when the door Sutt, may happen. In the dis- ted to the verdict. that what here in-custody trict court admitted three seems to us that prejudicial statements In two of these volunteered Sutt. warnings, decision, given Miranda of the Miranda since was not knew Sutt warning. pre given and in the third he was Matos the We warned. gave prime purpose three statements he FBI sume that he knew that a exculpatory, the third state- Supreme Court in Miranda is to *4 ment, “guarantee priv which was made after the Miranda full effectuation of the warnings given, ilege against more detailed self-incrimination.” John incriminating. the Jersey, 719, 729, The court held son v. New U.S. prejudiced 1772, 1779, in- (1966). not 16 L.Ed.2d 882 troduction of the first two statements. that his volun should known Also, pur statements that case were teered statement ran counter to that directly precisely ques- pose. not so on a vital unresponsive tion of intention as the Reversed and Remanded for New answer of Bottker There was a here. Trial. strong web of circumstantial rec- Sutt. We affirmed on that PELL, Judge (concurring). Circuit Franke did not a Miranda ord. involve fully IWhile to the well subscribe question. question there was wheth- Judge Kiley, reasoned decision of because incriminating er information established dissenting opinion thereto, of the filed probable for cause Franke’s arrest. The I feel constrained to add these words of evidence, introduced into for concurrence. corroborating purpose the in- lawyers Trial devote countless hours to tip, testimony former’s of federal subject influencing jury of factors regarding they through heard what elec- verdicts. of this time in the Some assumed, eavesdropping.

tronic We experi- nature of observation based on decide, did not there was ence, guesses some, some educated error in the admission of the fruits course, pure speculation. eavesdropping, but sustained the arrest given by “information” appeal spec- We at the level should not regard “informer” without to the eaves- particular jury, ulate as to what or dropping evidence was sufficient to es- might juror, have done under cir- probable cause, tablish and there was hand, cumstances. Neither on the other incriminating no evidence to refute the however, speculate should we that some testimony of the informer at the trial. procedure highly prejudicial with a might potential po- not have realized its In aid of a new trial for Matos we speculation tential. One form of is as point warning out that the Miranda tes- undesirable as the other. timony unnecessary proof case. There was no introduction into require flight no unrealistic evidence of a confession imagination or incrimina- to conceive discussion ting required proof statement really thought to the effect that if Matos warning. proof of Matos’ em- plat- that he should take the watch to the ployment, inspectors office, saw anyone form without en do, uncovering route, certainly iden- explained would have tifying having it as been the one test the whole situation when confronted mailed, were the postal elements of the of- underlying purpose say The deterrent only one take It would Arizona, U.S. in Miranda v. decision members the other persuasively 694, is, L.Ed.2d 86 S.Ct. he was can believe panel, “But inapplicable. Nor is this a make a he refused when innocent was asked in which the case a chance? guilt from the de- inference of testimony. draw an It’s don’t believe of his thought fendant’s assertion somebody, something he, or all Griffin self-incrimination. trial.” Cf. 609, 85 my opinion that sufficient 14 L.Ed.2d 106. pos- existed which situation factual defendant’s silence even claim that statement, in fact such a sible impeached his of his arrest the time not made. it was or was testimony Fowle the trial. Cf. pre- never should States, 'Harmless error 410 F.2d 48 speculation. upon York, 1969); compare dicated Harris New Judge, (dissent- STEVENS, Circuit Thus, prosecu- there was neither ing). police torial nor misconduct.1 the record indicated If jury did before the deliberately volunteered sign had refused disclose that Matos *5 assertion the defendant’s comment on rights a or that he had asked waiver privilege, mis- a Fifth Amendment his lawyer for a at the time of his arrest.2 granted. Even should have been any testimony Nor there was deliberate, if the comment was not asserted his constitutional justified as court’s decision was, self-incrimination. There safeguard improper such be- however, testimony repeated that the de- by government must havior fendant remained silent at times when appear prosecution frequently as wit- if, testified, spoken he would as he have interpret record, how- nesses. As I give he had intended to the watch to the relatively ever, unim- the mistake awas proper authorities as as soon feasible. significance portant inadvertence; its significant testimony The most re- was magnified by the manner in which objection. ceived without objected, defense would counsel charge prosecution con- Thus, cross-examination, objection. sequences of a defense acknowledged that after he “found” the arrested, watch and before he was he did any police This case does not involve employee not show it to who was another misconduct. ad- supervisor with him or his he to vised Matos to counsel his be- asking go Moreover, empty pockets. fore him to him his told to to lunch.4 In- Unless, course, employees. they one infers “in- Were around at that you prose- advertence” was contrived between found the watch? witness; (In English) Yes, guy. cutor and “A one am satisfied that such an inference is not warranted “Q One man? record. (In English) “A Yes. you “Q Did show him the watch? brought during 2. These facts were out hearing (In English) the voir dire to consider defend- “A No.” request empty ant’s that to you watch, 4. “Q After found the that was his violated his o’clock, right? rights about 11:00 is that because his arrest was without warrant. (In English) “A Yes. you go “Q lunch? What time did to 3. “Q About 11:00 o’clock. Was there anyone English) (In “A around? You testified there were 11:00. testified, objection, spector Mott without that defendant had disclosed defendant, arrest, placed upon request under he that when accosted voluntarily emptied himself, pockets, told him that his identified questions, wrapped to ask him some been found wanted dirty say anything.3 in defendant did not Mott white cloth.7 No reference then testified that the de- either Mesics' Mott’s or testimony, fendant to Bottker's office where the on either direct or cross- empty pock- examination, defendant was asked to his comment the de- 6ets.5 fendant. testified, Thus, Inspector apart Before Bottker testimony, from Bottker’s Mesics confirmed Mott’s the uncontradicted evidence established 5. stairs ficial stairwell about, that him I was from the tions. time. found him? hand you ? go to lunch? my glove. hand all this time? me to my pocket. you found a watch? pervisor at “Did “A The defendant and I went down the “A He didn’t “Q What did he “Q Then what “A “A “A “A “Q “Q Did Q The ‘ n “Q “Q “A “Q Shack? Did Who told “A “Q “Q 11:00 o’clock. “A not, [*] [*] we investigation like All Yes, Yes. Did (In English) No, Do (In English) *6 (In English) this’. (In What (In English) (In (In (In English) (In English) you at this time? would like again asked you you English) I 5’ou this watch was English) I English) you [*] [*] you told him that lunch, walked is his You did not have the watch out in know had to do is and tell (indicating) me time? say anything Inspector’s say name? Yes, my and No. [*] [*] Shack. When he told me to you No, up your supervisor Yes. Supervisor. No. When his ask conversation to lunch? that when to him and I told I don’t do it.” I sir. your pocket, name? talk to do? him this was an don’t we you? this was sjs [*] do and some open your Office got hand with that, put your say, we down- ques- with [*] [*] it in your that and told got did of- all su- T “Q7. 6. “Q versation with the defendant? ger —it was rolled wash Mesics. items out of his cloth table also. defendant articles contents of his if in communication with “BY MR. SIAVELIS: or. the time that with him. under arrest and the office? pockets, him, ‘Comprendo’, a conversation with the defendant? derstand what was an Spanish, You “A The defendant “A Mr. “Q Then what “THE COURT: “Q What “A We were in radio communication “Q “MR. ALWIN: “A Yes. He “A “Q How did he “A Yes. “Q You anything? was under interpreter was in You are in the office Mr. Mesics asked was a Now, cloth, When Now, Now, Inspector’s rear out of his if he would. Did right? removed a Mesics told said watch.” have a or I came into the asked just prior happened, Agent Bottger pocket there so that he arrest asked Agent Bottger yes rear process told pockets, asked happened? the defendant was told —and and he said respond? Office we would have him, going on, Objection, standing dirty pockets also, Objection and started front and him English.” him sir? proceeding Agent Bottger defendant he was inside the wash what wash cloth ‘Comprende’ put this, to remove the to remove the have a now, objection. office to take unwrap and I asked open your it [sic] yes. overruled. happened, empty would were and on over the— Agent Bott- Hon- from con- and you un- up (cid:127)

J077 op- three the defendant before return portunities to AND EX- of SECURITIES In Matter wrapped soiled cloth in a found COMMISSION, Plaintiff, it was CHANGE occasion pocket, each on in his v. comment silent. he had remained BRO., partnership, & H. L. RODGER for re- Bottker, basis which Defendants-Appellees, al., et cumulative versal, nature respect third oc- evidence BEAK, Gladys Last Executrix B. remained si- casion Deceased, Beak, M. Will of Robert my judgment, it was suf- In lent. ficiently Petitioner-Appellant. from the different No. 18709. occasions, reversal. to warrant Appeals, States Court expressing opinion I do not .In Seventh Circuit. purport that no a belief to declare June a reasonable have entertained could July Rehearing Denied guilt if the com- as defendant’s doubt merely had not been made.8 ment sig- the error here is less conclude that Harrington nificant than the error California, 395 U.S. 284; Chapman S.Ct. 23 L.Ed.2d 18, 87 17 L.Ed.2d

386 U.S. 705, Connecticut, Fahy v. or 171; 11 L.Ed.2d guilt, apart

error, stronger strong, (and is as

conversely the basis for reasonable weak, guilt as to defendant’s as weaker)

or than in of those cases.

Regardless proper verbalization rule, am, persuaded

Bottker’s comment was “harmless” with- holdings of those cases. *7 happened? place “Q Then what me. Excuse Did he the de- this wash cloth —the Then fendant under arrest? wrapped up.” was found “A He was him he was under arrest, yes, sir. inappropriate. Such a declaration say anything “Q Did he also else? argued we must reverse “It empty pockets. He asked him imagine single whose we can “Q What then? might mind have been object, your “MR. ALWIX: Honor. Bosby’s Cooper’s confessions and

May objection? continuing I have a have remained would otherwise “THE COURT: You have a con- We of course do and unconvinced. tinuing objection. Objection overruled. jurors judg- Our who sat. not know “BY MR. SIAWELIS: reading our own be based on ment must happened? “Q What seems to us to and on what of the record emptied “A The defendant his front impact probable pockets first, removed some coins and minds of an on aver- two confessions articles, some other and from his back age jury.” Harrington pocket, I he removed —the one be- 1726, 1728, 250, 254, pocket, lieve it was the left rear he re- cloth, moved what looked like a wash dirty, white, he set table.