*2 FRIENDLY, Bеfore MOORE and Judges, BRYAN, Circuit District Judge.* BRYAN, FREDERICK van PELT Judge: District Tyler Judge and a trial before After jury appellants convicted on were each knowing possession first, two counts: drugs of the value cartons ship- interstate over stolen $100 second, (18 659), ment U.S.C. § transport conspiring to receive goods commerce stolen of val- interstate exceeding 2314). $5,000 (18 ue U.S.C. § They judgments appeal from the of con- viction. principal appeal
The this contention on prearraignment agents appellant Fox to F. B. I. should not have been admitted in evidence. It is urged warnings given Fox inadequate were under the standards set Arizona, State 1602,16 L.Ed.2d 694 entitled to find the fol- lowing facts: On December 1963 a truck contain- ing drugs $200,000 Squibb some mov- ing hijacked in interstate commerce was City. in New York In late December early January drugs 1964 the stolen Anthony stored Paul DeVito and Rin- drug empty aldi basement of an Rocky Point, Long store in Island. February, 1964, appellants Fox and jointly $5,000 Norber borrowed from a bank, ostensibly buy Detroit in order to quick re-sale some distress merchan- bargain prices. dise then available money placed in Norber’s ac- Greenman, Jr., Frederick F. Asst. U. S. count. On March Fox and Nor- Atty. (Robert Morgenthau, Atty. M. U. S. ber drove New York in Fox’s Ford York, for Southern Dist. New and Econoline truck and checked into a double Leval, Atty., N. Pierre Asst. Lodge U. S. room at the Travel Motel in mid- brief), appellee. Manhattan. York, sitting by designation.
* Ofthe Southern District of New
Fox and
motel and
drove back
truck
drove
March
On
on March 7
Point,
arrested
Norber wеre
Rocky
drug
empty
store
the
Long
drugs
load of
the second
the stolen
Island,
portion of
starting
Fox said
for Detroit.
out
into
loaded
drugs
the basement
drugs
close-out
been
to have
believed
truck back
drove
Fox then
the truck.
obtained
which had been
merchandise
March
motel. On
Manhattan
that he did
and testified
Marcus
in their
Norber
Fox and
DeVito called
*3
they
stolen.
that
were
know
asking
“Fox
room,
speak to
to
motel
denied tell-
Fox
Sam.”
On cross-examination
arresting agents
ing
had been
that he
the
checked
Norber
and
Fox
March 7
On
looking
on
Rocky
racetrack
for a
at
Point
truck
in Fox’s
drove
motel and
out of the
4;
they
him
that
had asked
March
As
Tunnel.
Lincoln
toward the
the truck
questions
contents of
about the
they tunnel
to
the
enter
were about
that he didn’t
or that he had told them
agents.
truck
In the
F.
I.
arrested
B.
fact,
were; or, in
contents
know what the
drugs worth
of the stolen
cartons
were 77
anything.
he
told them
that
had
top of the
$14,000.
approximately
On the
called
the
On rebuttal
Gоvernment
containing
bag
plastic
was a blue
cartons
Agent,
McGillicuddy,
had
an F. B. I.
who
lists,
drug price
hand-
Squibb
several
interroga-
present
the arrest and
been
at
inventory
of the cartons
written
McGillicuddy
showing tion of Fox on March 7th.
Squibb
truck,
invoices
and 11
and
that after the arrest he
testified
agents McGoey
found
prices
items
of several of the
the
and
took Fox
Saunders
and Norber
Fox
in the truck. When
Manhattan,
that,
B.
the F.
I. office
and
searched,
paper
slip
on
of
Fox had
“Agent McGoey advised Fox that he
the
directions
had written
which he
statement;
have
didn’t
to make
that
drug
Rocky
store.
Point
any statement that he made could be used
case
At the
of
Government’s
end
a court of law and he could consult
Appellant
Fox took
rested.
Norber
attorney prior
any question,”
and that
he
that
stand. He testified
substance
the defendant indicated that he under-
beauty supply
in the barber and
was
stood the
him.
advice
Detroit;
that
and Norber
he
business
According McGillicuddy, Fox,
after
purpose
$5,000
had borrowed
being
advised,
so
asked
was
about the
picking up
at a
of
close-out;
merchandise
some
contents
Fox said that the
truck.
he
come to New York
that
had
approximately
truck contained
70 cartons
(where
by pre-arrange-
he met Norber
of merchandise and that he was not
beauty
ment)
pick up
and
an order of
was;
aware of
what
merchandise
only
supplies
he collected
barber
that he didn’t know the
from
individuals
released;
that
after he was arrested and
purchased
goods;
whom he had
morning
night
on the
of March 3 and the
why
when
asked
was
he
he
had been in
he
with a Wil-
March 4
had conferred
Rocky
Long
Point
Area
Island on
wholesaler,
Marcus,
drug
liam
a Detroit
4th,
gone
March
he said that
had
man
who introduced him to a
known
looking
Island
on the 4th
for a race-
“George” ;
on March 4 Fox and
track;
that he hadn’t found a racetrack
George
Rocky Point
had driven to the
day
on
any-
and that he didn’t know
drugstore,
drugs and re-
loaded some
body Rоcky
Point.
motel;
night
turned to the
that on the
appellants challenge
the admissibil-
cramps
March
had stomach
Fox
ity
McGillicuddy
of gave
as to
key
who
his truck to Marcus
statements,
primarily
Fox
took it and
truck
Fox
returned the
ground
warnings given
that to Fox
evening emptied
contents;
that the
its
satisfy
did not
minimal Miranda stand-
morning
again
Rocky
next
to
gave
went
ards.
George
Point where he met
him
George
Marcus;
slip
paper
The Government counters
with
(1)
loaded the truck with cartons and both
claims
proper objection
that no
gov-
grounds
Miranda standards
at the trial
decision and the
was made
Miranda
Jersey,
evidence,
ern,
New
this
Johnson v. State
the admission
objection
16 L.Ed.2d
(2)
proper
been
had
even
unless,
made,
882
argues they
the Government
have
would still
Fox’s statements
apply
the facts
do not
sole effect
“their
been admissible since
credibility
impeach
col- here.
on a
his
Rocky
trip
Point
lateral matter—-his
agree
appellants that
We
with
dealings
Marcus and
with
warnings given
did
the еase
bar
”
mysterious ‘George.’ The Government
comply
Miranda
standards.
suggests
purpose
desirable
also
that “no
(1)
extending
prophy-
requires
accused
that the
would be served in
“the
remain
lactic rules of Miranda to exclude
be told that he
has
here, especially
merely
where
silent.” Fox
“he didn’t
statements at issue
told
warning given
a fair one which
to make
This is
statement.”
*4
fully complied
thing.
easily
the
Mir-
no
the same
with
law before
means
could
interpreted
anda.”
to mean
not
did
have to make a formal statement rather
Arizona,
In Miranda
the
v. State of
any ques-
than that he need not answer
Supreme Court held that
say anything
tions or
at all.
“[Wjhen an individual is taken into
(2)
requires
Miranda
that the accused
custody
deprived
or otherwise
of his
right
pres-
be told that “he has the
the
to
any sig-
freedom the
in
authorities
attorney,”
meaning
plainly
ence of an
way
subjected
ques-
nificant
and is
attorney present
an
at the interro-
tioning,
privilege against
the
self-in-
gation. Fox was told
cоuld
“he
consult
jeopardized.
crimination is
Procedural
attorney prior
an
question.”
safeguards
employed protect
must be
given
There was no indication
himto
privilege,
fully
the
unless other
right
that he had the
to have an attor-
adopted
notify
effective
means
ney present during
interrogation.
the
person
right
the
of his
of silence and
right
to assure that the exercise of the
(3) Nothing at all was said to Fox
scrupulously honored,
will be
the fol-
right
attorney ap-
about his
to have an
lowing
rеquired.
measures are
He pointed prior
questioning
if he could
prior
any question-
must be warned
one,
requires.
afford
as Miranda
ing
right
that he has the
to remain
Although the “words of Miranda do
silent,
anything
says
can be
not constitute a ritualistic formula which
law,
used
in
him a court of
repeated
must be
without
in
variation
right
he has the
presence
to the
of an
order to be effective” and “words which
attorney, and that if he cannot afford
convey the
warning
substance of the
attorney
appоinted
one will be
along
with the
information are
prior
him
questioning
if he so
sufficient,”
Vanterpool,
United States v.
478-479,
at
86
desires.” 384
S.Ct.
U.S.
(2d Cir., Apr. 29, 1968),
101 however, urges, that, argues The Government Government testimony McGillicuddy any event the testimony Fox’s tоas if rebuttal even admissible as to Fox’s statement was Mir under inadmissible of this under circumstances rebuttal standards, objections anda the statement case. It characterizes insuffi trial were defense counsel inculpatory and exculpatory than rather on issues preserve cient impeach says Indiviglio, sole effect was its citing v. appeal, United States credibility banc), collateral Fox’s on matters (en 1965) (2d Cir. 276 in chief and not 887, Government’s case 907, denied, S.Ct. 86 383 U.S. cert. challenge directly innocence. defendant’s (1966). 663 L.Ed.2d 15 state contends Government objections made that the We think under ment therefore admissible robing Both in were sufficient. trial pre-Miranda v. Unit decisions Walder counsel open defense court room and 62, 354, States, 98 ed 347 74 U.S. S.Ct. at the re- objections specifically directed (1954), United States v. L.Ed. to Fox’s statements buttal Cir.), (2d Curry, 358 907-913 agents. denied, cert. 385 U.S. S.Ct. robing room objection in the His first denied, rehearing (1966), 17 L.Ed.2d Mallory United was based 18 L.Ed.2d L.Ed.2d authority and that However, renewed when he these cases has not been undercut objection open he called court Miranda. *5 any of on the “voluntariness” a voir dire against Walder, In a 1950 indictment by Fox. post-arrest made statements purchase posses- defendant for the judge dire the voir The-trial denied of heroin sion had been dismissed continuing request gave ob- a him but ground capsule heroin had been testimony. McGillicuddy jection to the by illegal obtained a search and seizure objection to “vol as counsel’s Defense under the Fourth Amendment. Defend- McGillicuddy again after years untariness” was ant indicted later two given warnings but illegal quite separate had testified for other trans- any to answer before he was allowed He narcotics. actions took stand Thus, questions statements. possessed to Fox’s and testified he had never objection highlighted timing of the narcotics. The then Government was on “volun permitted, The reliance its substance. objection, over to introduce adequate preserve quite рossession tariness” was evidence defendant’s earlier objection. solely Voluntariness is purposes a Miranda impeachment. scarcely limiting art which term of a sustaining ruling In trial court’s or violation excludes self-incrimination Supreme said, Court of the Miranda rules.2 thing say one “It is that the Gov- objections repeated could No doubt the ernment cannot make an affirmative accurately phrased. But have been more unlawfully use of evidence obtained. to fore- of a dire tended quite the refusal voir say another hyper- It would be illegal close clarification. defendant can turn method objections by insuffi- to call the technical evidence the Government’s preserve possession cient claim as basic to his was obtained own appeal. advantage, this on we feel that Unit- provide Nor do himself with Indiviglio, supra, against ed which is States v. a shield contradiction of his facts, distinguishable markedly on its can untruths. Such extension of the or should be extended to situa- perversion cover Weeks doctrine would be a here. tion the Fourth Amendment. through This runs theme the decision See also Wheeler v. United See, g., (10th 1967). Miranda. at e. 465, 467-470, 478, 461-462, S.Ct.
“* * (cid:127)>: n course,
reason,
may
Constitu-
no distinction
be drawn
fullest
guarantees
inculpatory
between
defendant
tion
statements
alleged
accusation
opportunity
merely
meet
statements
‘ex-
be
deny
against
culpatory.’
free
him. He must be
If a statement made were
against him
truly
would,
case
exculpatory
of thе
all the elements
in
course,
fact
it
thereby giving
by
prosecu-
leave
without
never
be used
by way of
merely
fact,
to introduce
In
in-
Government
statements
tion.
illegally
exculpatory by
secured
rebuttal evidence
it,
tended to be
de-
for its
impeach
and therefore not available
are
used to
his
fendant
often
however,
that,
Beyond
testimony
case in chief.
trial or to demonstrate
letting
hardly justification for
there is
untruths in
under
affirmatively
interrogation
resort
prove guilt
the defendant
аnd thus to
perjurious
on the
by implication.
reliance
These statements
challenge
disability
incriminating
meaningful
Government’s
sense
credibility.”
U.S. at
may
his
of the word and
not be used with-
at 356.
warnings
out the full
and effective
waiver
other state-
holding
extended
The Walder
477-478,
ment.” 384 U.S. at
Curry,
in United
this circuit
(emphasis supplied).
at 1629
supra,
permit
use of statements
illegally
defendant
from a
obtained
the Court went on to state
credibility
mat-
impeach
on collateral
that “unless and until such
directly
question
bearing
ters
prosecu-
waiver are demonstrated
contradictory
guilt
trial,
or innocence
tion at
no evidence
obtained as
re-
constituting the
interrogation
of the facts
his version
sult
can be used
charged.3
(id.
crime
him”
(em-
1630)
86 S.Ct. at
phasis supplied).
pr
e-Miranda cases.
These were
Supreme
said
un-
Miranda the
Court
pronouncements by
These
the Su
language:
equivocal
preme
may
technically
dictum.
*6
abundantly plain
But
is
it
that the court
warnings
required
and
“The
lay
general
intended to
down a firm
rule
necessary in
with
accordance
waiver
respect
to the use of statements un
today are,
opinion
in the absence
our
constitutionally obtained from a defend
pre-
equivalent,
fully effective
of a
ant in violation of Miranda standards.
admissibility of
requisites
prohibits
The rule
the use of such state
by
No
statement made
defendant.
inculpatory
ments whether
exculpa
or
between
be drawn
can
distinction
tory,
bearing directly
guilt
whether
on
confes-
direct
which are
statements
or
оnly,
on collateral matters
and whether
which amount
and statements
sions
used on direct examination or for im
part
of an
or all
of
‘admissions’
peachment.
privilege
self-
The
offense.
Thus,
protects
individual
insofar
we conclude
incrimination
being compelled
Curry
pr
to incriminate
and
e-Miranda cases
similar
from
manner;
permit
it does
extended Walder doctrine to
in
himself
unconstitutionally
distinguish degrees of incrimination.
the use of statements
purposes
Similarly,
precisely the samе obtained from a defendant for
See,
g., Inge
jurisdictions
States,
doctrine
e.
the Walder
v. United
other
illegally
App.D.C.
(D.C.Cir.
applied
F.2d
to statements
356
345
was
also
g.,
See,
1965) ;
States,
e.
Johnson v.
120
from the defendant.
United
obtained
U.S.App.D.C.
States,
U.S.App.D.C.
(1964).
109
without inter- his —or rogation at all. majority deficiency,
As a third
point appoint- to offer failure assumption
ment of counsel on the America, STATES UNITED course, Fox could if Appellant, not afford one. Of v. suggested indigency, Fox had even BROCATO, in Bank Anthony Trustee G. counsel; would have been entitled to but Tinsley, & ruptcy Pick P. for W. d/b/a expression in- absent some of financial Bankrupt, Ap Grocery, Drive-In Peek ability any showing of actual harm pellee. indigence, rights based on not ADMINISTRATION, BUSINESS SMALL jeopardized. Admittedly, Miranda, Appellant, n. Supreme post Court advised ex Bankrupt DENSON, Trustеe John V. inquiries premised into actual harm facto Mann, cy Raymond Curtis d/b/a inability; on financial ration- Court’s Ap Auburn, Alabama, Piggly Wiggly, giving expedient ale was pellee. warning, Miranda, outlined in Nos. simple.” Here, however, “too the inter- rogation occurred before both the Crim- Appeals United States Court of inal Justice Act 18 U.S.C.A. Fifth Circuit. agents 3006A and Miranda. The § Oct. what forewarned of was later to be simple Therefore, “expedient.” found a circumstances, inquiries these into prejudice permissible. actual should be *9 case, proof In this there no premised inability. harm on financial