United States v. Marvin Feinberg
383 F.2d 60
2d Cir.
1967
Check Treatment

*1 America, UNITED STATES Appellee, FEINBERG, Appellant.

Marvin

No. Docket 30739. Appeals States Court of

Second Circuit.

Argued Nov.

Decided *3 Friedman, G. Ober- H. Otto Ezra Attys.,

maier, M. Mor- U. Robert Asst. S. Atty., genthau, Dist. S.U. Southern appellee. York, for New Hyman Bravin, Irving Anolik, New City, appellant. York WATERMAN, and MOORE Before Judges. HAYS, Circuit Judge: WATERMAN, Circuit judgment of appeal This from on a verdict in the conviction for the Southern States District Court 1, 1966 District of New York. On June Feinberg on convicted two was knowingly counts, trans- the first porting motor vehicle inter- a stolen commerce in of U.S.C. state violation and the second U.S.C. § § conspiring commit the substantive offense, in violation of U.S.C. § Appellant imprisonment was sentenced year day the first count of one and one on years probation on second and two pending count, but remains on bail free appeal. determination of this government case established Damsky, Feinberg codefendant pleaded guilty conspiracy who gov- the trial as and testified at count joint witness, owners ernment were Riverdale the Riverdale Auto School Rental, Inc., Coun- in Bronx Auto located Early January ty, York. New introduced to one Frank Giam- provide petruzzi who claimed could Feinberg Damsky to drive Lincoln. $1000 their businesses cars for corporate had been a executed the document each $1200 capacity. Damsky at the auto- “mix-up” numbers On 14th in serial and his plants in Detroit. wife left New York Lincoln manufacturers’ mobile requested City Damsky purpose expressed interest and drove to Mexico for the dual vacationing selling supply a 1960 Giampetruzzi and of car. He them convertible. was arrested there Continental Mexican authori- Lincoln possession ties for car of a stolen January 17, night During agents FBI returned Texas its stolen such an automobile July 25, 1960. purchased it for rightful owner who The next shortly Feinberg theft. before the testified his own $5800 Damsky any morning complicity car was delivered behalf. He denied in the purchase any John Newton. one or sale of automo- stolen *4 Feinberg warrant- prepared price paid bill of sale biles. He a claimed that the for and ing $5700, free of liens title the 1960 Lincoln the Lincoln’s had been Damsky and Newton or claims. He testified that he $1000 $1200. accident had nearby purchased no- a sale to the 1959 this bill of Pontiac then took Bonneville price it. tary executed for a fair Newton before whom or He $2500 $2700. registered participation his Damsky car in denied in the addi- then three name, secured a tional stolen car $1500 it and transactions testified insured to own by it, proceeds Damsky Cioffi and personal loan and fur- bank denied Feinberg. April nishing registration given On counterfeit to blanks to which were trans- Cioffi. the Lincoln was 22 the title to company which to the auto rental ferred Feinberg On cross-examination was paid and the in- the bank loan assumed signed confronted with his handwritten Damsky premiums car. on the

surance July 21, 1960, statement see fn. 7 they paid Giampetruzzi that testified infra, which he admitted he had that for to it. $1200 $1000 made to Detective Charles Francis of City Department New York for Police Cioffi testified and A named witness portions him- which was inconsistent he introduced with the Government testimony. Giampe- Feinberg a friend of self to being represented himself as and truzzi July 21, 1960, days On four before Giampetruzzi. same “business” Damsky Mexico, had been returned from appel- supply cars to offered to stolen He Francis, City Detective a New York de- if for each would lant $1000 tective, Feinberg’s went to and office registration forms with obtain blank questioned him about Lincoln stamps. He testi- counterfeit validation being and about the 1959 After Pontiac. Feinberg 7 to 10 did furnish fied headquarters told he would be taken to by depositing forms for him them such Feinberg agreed “in the cuffs” accom- to post combination in a office box whose pany Francis the detective’s at to office Feinberg Cioffi, to and communicated he police headquarters. way On the testified, objection, after also over Feinberg’s stopped home to tell registration he the counterfeit received Feinberg charge Mrs. to take at the of- Feinberg, forms stole and delivered he fice, half-way headquarters and then during April 1960, 1959 Pontiac Bonne- a they stopped at a diner coffee price convertible ville $100. Arriving headquarters ques- cake. Damsky and codefendant also Cioffi tioning continued, informing Francis Feinberg implicated in three additional Feinberg Damsky had been arrested transactions same stolen car in Mexico and that the FBI was inter- involving period two 1960 Thunderbirds ested in the case. Francis did not inform and a 1959 Cadillac. Feinberg right had he a at- to an torney Damsky silent, or remain document but In had a the record gives attorney authorizing Feinberg no prepared indication that resulting subjected tough prejudice, any way toas or so ascertain the coerced in any, appellant. Fein- He other than caused detention-room tactics berg’s conclusory he generalized also claims that statement the statement which gave “there made Francis the state authorities was he with that while talking compromising brow- such under circumstances was an awful lot ** require ex- beating re- as to the trial either to When and threats hold quested specify or at least to he meant clude it from evidence what preliminary stating con- determine said or done that what was threat, “Well, had replied, no whether statement been volun- stituted a he tarily addition, he imagination maintains I made. stretch do want give impression physical into of testi- admission evidence it was mony relating to had an offense for which he that there been threat” but meant acquit- previously tried repetition.” hours he had three “a lot of Within subjected him to office, ted state authorities after Francis’s arrived at jeopardy Fifth Feinberg prepared double violation and executed writ- princi- regarding participation Amendment contravened the ten Finally, appel- transaction, ple estoppel. later on collateral in the Pontiac questions another, propriety one lant wrote and executed out charge court’s and the suffi- to his involvement relative ciency support con- police headquar- evidence left Lincoln. *5 thoroughly custody, We have examined ters in arrest on a state viction. under receiving charge criminally and Pon- all of these contentions the conclude require of none a reversal tiac. admitted to bail the next He was them judgment morning, he further below. and a week later was by questioned FBI at office two Delay Pre-Prosecution The 1. agents transac- about 1960 Lincoln offense of which by York for He was indicted New tion. having committed been of having has convicted criminally 1959 Pon- received the July 14 and was consummated between tiac, 3, October tried in on 1961 was 22, period in which Dam- 1960 —the County sitting Bronx the court Court sky Mex drove the Lincoln Continental jury, acquitted without and was however, Appellant, ico. was not indicted charge. 14, years and 1965, until June some four 14, On indict- 1965 the federal June eleven months after the offense and filed; present ment in the case was expiration of one month before the 15, Friday, April thereon commenced on (18 applicable limitations. statute of 1966, its returned verdict 3282). there has been U.S.C. Where § Tuesday, April 19, judgment delay pre-arrest limitations statute pronounced entered and sentence guar “usually primary considered the on June overly against bringing crimi stale antee charges,” Ewell, 383 upon appeal nal v. contends delay prose- S.Ct. between offense and delay usually right process Pre-arrest cution violated his due damaging guaranteed speedy effects and a free the sometimes delay1 post-arrest until respective- Fifth of excessive Sixth Amendments ly, requiring de has one has not been thus the trial to dis- been arrested publicly or, least, prived ac indictment, requir- miss freedom or been at ing Moreover, jus may preliminary cused. be valid delay. investigate delay pre-arrest Time- tification for a the reason for the anxiety accompanying Ewell, mize and concern 1. As said in United States v. possi- public supra limit at accusation and at the Sixth delay impair guarantee long important will an Amendment “is bilities that ability prevent oppres safeguard him- to defend undue of an accused prior trial, mini- self.” sive incarceration sumption ar to an is that investigation established consuming stat accusing Indeed, ute of limitations. likelihood some courts minimizes rest may the have said facilitate that the statute controls irre parties and innocent spective persons. guilty of whether there has been additional exposure of prejudice. demonstrable See, g., is established e. Bruce probable cause Once justifica however, States, (5 United 351 F.2d filed, these indictment 1965), Cir. importance; denied, decreasing cert. 384 U.S. tions are made, (1966); the S.Ct. already 16 L.Ed.2d has accusation Hoopengarner modi gathered States, least United has prosecution 1959); hr rest evidence, news Harlow v. United cum States, supra parties any case, to take implicated other cause will it protection is clear point, delay Also, that mere at this arrest cover.2 does not ex of itself of limitations amount to a constitu the statute afforded tional violation. of limitations United pires the statute States v. Sim mons, supra, com F.2d at 806. only applies between to a filing crime and mission of the Though prejudice is not to be a number reasons For these indictment. may presumed, it pre-arrest well be that constitutional held the courts have delay may impair capacity of the ac available Amendment of the Sixth shelter prepare cused to defense, and, so, by post-arrest de only to those affected impairment such process raise a due States, g., lay. See, v. United e. Nickens claim under the Fifth Amendment, see U.S.App.D.C. Powell v. United U.S.App. (1963); Harlow v. D.C. or a denied, (5 Cir.), cert. F.2d 361 Sixth upon claim Amendment based (1962); 9 L.Ed.2d speedy trial guarantee, see United States F.2d 680 Parker v. Simmons, supra, 806; 338 F.2d at (6 Cir.), United States v. Dickerson, supra, 347 Foley (1958); 1003, 2 L.Ed.2d 1071 *6 F.2d at 784. See Chapman also v. United Cir.), (8 States, F.2d 562 290 v. United States, 376 (2 F.2d 1967). 705 Cir. 139, 888, denied, 7 82 S.Ct. 368 cert. U.S. For this reason inquire we must wheth (1961); L.Ed.2d 88 v. United Venus er plausible there is a preju claim of (9 1960), States, rev’d 287 F.2d 304 Cir. resulting dice delay from the in ar grounds, on 82 S.Ct. other U.S. rest. See Jackson v. United (1961). 384, 7 But L.Ed.2d 341 see U.S.App.D.C. 124, 351 F.2d 823 key Dickerson, 347 F.2d United States v. (1965). Such may a claim arise if a (2 1965); 784 Cir. United States v. Sim defense witness or valuable evidence is 1964), mons, (2 338 F.2d Cir. lost, see Petition Provoo, D.C., 17 F. denied, cert. U.S. R.D. (D.Md.), per curiam, aff’d (1965). 76 S.Ct. 100 L.Ed. 761 (1955), if Appellant argues the defendant we must unable cred ibly to presume prejudiced reconstruct day he has been events of offense, year pre see the four and eleven month Jackson v. United States, supra, delay arrest between F.2d event indict or if the personal only government lapse prior ment. But the recollections of of time pre- or to arrest3 defense impaired, which will activate such a witnesses are Ross example Though presumption The familiar in is found nar be investigations prejudice efficacy cotics where where the there has been to shown agent delay. ¡posí-arrest of an undercover penetrate have been an or informant excessive Lustman, the network of illicit distribu United States v. publicly (2 Cir.), appears denied, tion ceases he when cert. complainant. g., See, (1958). e. United States v. 79 S.Ct. 3 L.Ed.2d 109 Simmons, 1964), 338 F.2d 804 U.S.App.D.C. placed July 21,1960, States, 121 ant was on notice completion if (1965), because one week of the of- after 213-214 reliability official, fense, any a state occur of these events purpose of de- proceedings course of interview which resulted of the appellant’s statement, termining guilt suspect. formal becomes partici- called for his would be to answer Columbia Ross the District pation transaction; inter- in the and this conviction a narcotics reversed Circuit within view was followed a few weeks only delay pre-arrest was though the agents. similar from federal visit months, was accused seven by appellant recollection Moreover unemployed without uneducated, man Damsky involved of the transaction here abil little with offense and notice facilitated various documents was ity events to recall the or reason evidence, e., sale, registration i. the bill of offense; alleged day defendant’s certificate, application, etc., re- bank loan similarly re unable was alibi witness not freshers recollection available prosecution tes ; witness and the sole call customary narcotics transactions. We recollection, but tified, personal not note, finally, prosecution two that here notebook, only official the aid of his with testify per- witnesses were to their able identification means sole Feinberg’s complici- sonal recollections of alleged narcotics prosecution of dozens ty; lapses memory their minor were Woody See also offenders.4 details; and related non-essential U.S.App.D.C. 192, F.2d any government event, wit- were Godfrey (1966), v. United nesses, lapses, if credi- even these their U.S.App.D.C. bility preju- thereby, would affected By authority of Ross. decided on the than Fein- dice the Government rather Feinberg, case, contrast, in the instant berg. True, requiring the accused while though every opportunity given demon affirmatively prejudice, to demonstrate point prejudice, able strate watchfully must we aware of recall, instances of diminished to isolated affirmatively does accused not notably confronted with when prejudice when “His failure demonstrate authori to state inconsistent statements memory inability to recon- ; ties none of these instances dealt with he did remember virtu- struct what dispute. He, an matters in edu essential showing ally precluded his re- what cated, middle-aged businessman, able might spects his defense have been more testify specificity as the events successful had been shorter.” deny unequivocally question States, supra, v. United Ross *7 complicity in the criminal transaction. usually handicap 215. be dis- Such a will damage any appellant of The extent scrutiny by rec- closed a of the careful might delay through the ord,5 certainly have suffered and record discloses the mitigated by none here. fact that here defend- though stated, supra days, Ross In at 216: 5. There were but three trial court precise attempting to a weekend intervened between “Without define the days. Feinberg and second took the reach of the Fifth Amendment in this con through- text, Friday, regard supervisory- a due for our stand on and testified Monday Tuesday. responsibility proceedings in out and into It was for criminal jurisdiction requires, view, in not until this our cross-exam- confronted — Monday July 21, of this conviction.” There ination on reversal —with fore, Sanchez, when that indicated a failure any 1966) we to remember circumstances 361 F.2d dis any study way Ross of the rec- cussed we considered that re material. A was, part, jury there at ord discloses could well sult reached least believe this this time to have the exercise of the District of Colum failure supervisory power feigned, examination Metro for on redirect bia’s over the precisely police politan all events C. detailed force. D. following morning, July 21 and of the of July 22, beginning Fran- Detective per Nor is our curiam decision it was recent consider whether need not We Sanchez, supra, United to the have de- States v. advisable for Although contrary. opinion contains request appellant’s a nied preliminary- for, might sup- hearing prejudice, dicta which be construed as issue of porting appellant’s suggests, position, formal a we affirmed as the Government permit hearing the inquiry of have revealed refusal the trial court to case in this could record. into the reason of did the for a no more than arresting of here, a thirteen one half months in Where, a substantiation unlike a prejudice additional narcotics offender “No sem- involves claim of showing prejudice testimony ir- blance a be of of would witnesses whose ” * * * So, guilt made 361 F.2d of and would at 825. relevant to the issue too, language Chapman prejudice there is similar to confuse or tend trying jury’s issue, which a in the light holding pre- must be read in in order. This case absence pre-arrest delay problem. a claim sents no such prejudicial propor- reached constitutional have observed Inasmuch as we tions must be raised at commence- prejudice of there is an absence parties ment a trial because both are remaining record, shown issue position litigate then in the best delay in for our resolution is whether a question prejudice. arrest, unjustifiable or unneces however impose upon It would be unwise to sary, is sufficient to invalidate a convic judiciary inquisitorial function tion the defendant not shown where has scrutinizing operations the internal delay. prejudiced We that he was agencies possi law enforcement when no not, it hold that Constitu “[T]he prejudice ble to the accused has been 48(b) against protect only tion and Rule Acceptance proposition shown. ad unnecessary delay unreasonable encourage vanced would * * added.) (Emphasis United hasty, investigation pre less efficient Simmons, supra States v. deprivations mature freedom, curtail 806; see Powell investigation organized the lodge crime, U.S.App.D.C. 229, agents pro with enforcement found No case has been recording every cedural onus in detail deliberate, unnecessary pre-arrest delay investigative process. event short, basis for it also sufficient reversal unless forfeiting prosecution fear of oppressive became unreasonable and frequently would induce unreasonable prejudice reason of to the accused. The speed which “would have a ef deleterious language in Pollard v. United upon rights fect both of the accused 354, 361-362, 481, 1 77 S.Ct. upon ability society protect (1957) Provoo, and Petition of Ewell, itself.” United States v. (D.Md.), per F.R.D. aff’d 116, 120, (1965).6 curiam, Admissibility Appellant’s II. The by appellant, referred to must be read in Statement post-arrest delay problems the context of which, already indicated, as we have in question We now turn *8 greater dangers volve to admissibility defendants. the of the handwritten Feinberg’s spectacularly cis’s call at unique after- office the not so in his ex- lodgement noon, City perience. his in a New York lockup evening, appearance charge to prej- court following morning answer the state 6. Inasmuch as here absence of prompt specifi- and the ob- udice is established we need not taining cally when, ever, prosecu- of bail thereon. Even one of determine if a faulty memory, who never before had tion must fail if the defendant establishes spent night prejudice, lockup, a in a more would be and the Government establishes apt surrounding justified by to recall the events the exi- gencies process.

incarceration than to recall other events of enforcement interrogations carry process by appellant given Detec out of to a statement7 eliciting investigative that lends to Francis, officer. itself incriminat- state a tive ing 21,1960 suspect statements, has re- that his contends quested opportunity regarding trans denied an the Lincoln been statement lawyer, involuntarily consult and the he was to police as was made action effectively way him any not constitu have warned of his informed in not right making rights of his to the state absolute constitutional tional * ** silent, Conceding inapplicability of remain no statement ment. police during guidelines elicited in- Miranda established in terrogation against Arizona, him be used of State (1966) a criminal trial. 378 490- cases L.Ed.2d decision, 491, 84 of S.Ct. at the date tried before Jersey, 384 U.S. of New Johnson State Supreme The has Court not settled (1966), 1772, 16 S.Ct. implications the broad of Escobedo in its argues appellant that Escobedo v. State discussion Ari- in Miranda v. of State Illinois, supra, zona, it also but would has seem (1964) compels ex precise apply directed us to narrow pres clusion statement. Since holding Escobedo, quoted above, ent case after was tried June Feinberg, persons tried, as was are forth in Escobedo standards set two-year period after clearly applicable. Johnson v. State Escobedo decision and before the decision must, then, Jersey, supra. de New We 13,1966. in Miranda Johnson on June In termine the effect of those standards. Jersey, v. State New Escobedo, Supreme 733-734, Court the Court held that where uniformity application indicated that * * * of constitutional standards necessitated longer investigation no guidelines laid down in Miranda general inquiry into unsolved presented by Esco- cover situations begun par- crime but has focus on a * * * police bedo.8 suspect,

ticular my partner statement, take a wanted to 7. The Government Exhibit trip. combination vacation & business reads follows: my readily The car will bills attest 7/21/60 price My was a lemon. Total [sic] defínate Partner knew this fellow from the price played $5700. of car was [sic] 92 St had ball with YMCA. He quite writ- The above him & out with him often. worked volountarily [sic], Upon getting me ten lift from the owner they Marvin the Lincoln one nite discussed the /s/ buying selling My partner & of cars. proclaimed The Court stated: interest the Lincoln. agreed As for down one the standards laid About a month later this fellow ago Miranda, per- price we were week to sell it. He wanted a fully (after approached checking) suaded that antici- wholesale Escobedo, My pated figures. partner brought up we him prospectivity from it would measure their see me. tried the car out & We the same date. Defendants still seemed to run beautiful. price would be entitled to tried at time We a little on & then dickered bought doc- of constitutional strict observance we the car after about a week. clearly large dis- trines foreshadowed. The me sum involved cautioned just agreements among registration. other con- courts have more than Escobedo, cerning implications arranged I have a sort notarized lay however, impelled exchanged. us to down know have bill of I did not sale guidelines any precautions for situations not additional other to take as presented have case. This we is not state. a title *9 Miranda, guidelines buying in took a done these Before the car we persons mortgage bank available the car with a are therefore $2000 on begun using not as of June reason trials had numbers. The whose the motor 13, in Mexico 1966. that tried to sell the car we

69 particular testimony pellant’s this apply in Accordingly, we appel- contrary and, and, here, in uncontradicted precise of Escobedo appeal, the on made to us holding, lant’s assertion note precise applying we that judge the record request indicated for initially not did jury that to the case to submission counsel, “‘the not denied he was hence “voluntarily appellant the statement made of the in violation Assistance of Counsel’ ** trial minutes See of coercion.” and free Escobedo Amendment Sixth pp. 382-383, 447-48. 491, pp. Record supra at Illinois, 378 U.S. v. State requirement 84 at S.Ct. 1765. Since due forth that Denno sets v. Jackson explicit admonition there be an must be process requires there rights accused of an to the constitutional any disputed determination a reliable thereof, in order a waiver to effect —see regarding the voluntariness facts 467-469, Miranda, 86 S.Ct. 384 U.S. at this accused statement Miranda, 1602, see not until exist —did by the be unaffected determination must Carolina, 384 Davis v. State of North guilt or statement truth 1761, 737, 740, L.Ed.2d U.S. S.Ct. 387, 1774. 84 S.Ct. at accused. 378 U.S. (1966),9 failure to warn instant jury reason, not be left must this For con- is not of the fatal an affirmance disputes affected to resolve factual By standards, Fein- viction. traditional until the trial statement content of the voluntary, berg’s totally statement was jury, judge, judge, or another another precluding thus a Fifth Amendment 391, 19, Denno, supra n. Jackson v. 504, claim, LaGay, see Cicenia 357 U.S. v. initially 1774, found has 84 S.Ct. 1297, (1958). S.Ct. L.Ed.2d 1523 voluntarily. made to have been Therefore we hold that is no con- Addi- 84 S.Ct. 1774. U.S. govern- infirmity preventing stitutional prelimi- purposes such a served tional being ment exhibit 13 admitted into granting hearing nary are those of evidence after it had been handed to and testify opportunity re- defendant appellant had been identified dur- being com- spect statement without of his ing the Government’s cross-examination defense, pelled stand take of him. Carignan, 342 U.S. v. see United States complains also the trial 96 L.Ed. 48 72 S.Ct. judge comply failed to with Jackson v. permitting appellate of the de- review Denno, U.S. 84 S.Ct. voluntariness, Boles see as to termination (1964) L.Ed.2d 908 re when he denied a Stevenson, 43, 45, 85 quest preliminary hearing for a to be (1964). L.Ed.2d 109 presence jury held outside the of the on question man of the voluntariness no doubt We have Here, ques applicable fed statement. the statement date of Jackson is objection component tion was Fifth admitted over eral courts appellant process. the cross-examination Berman who Amendment due had testified in his own defense. The J., preliminary (Black, (1964) refused hold a permit dissenting); but did defense counsel Hutcherson presence U.S.App.D.C. redirect fully develop certainly under It the bet circumstances Ap- practice10 which made statement. ter for “the factual bases ap preliminary hearing 9. The Court was an observed Davis that since applied prospectively proved practice Miranda was to be circuit even before “ * * * only, See, present g., Jackson. e. United States v. case denied, Aviles, solely ground not be reversed cert. on the warnings given not 80 S.Ct. waiver (1960); v. Gott shown.” 384 U.S. at S.Ct. at fried, 360, 367, 738, 92 L.Ed. 1139 *10 70 * * * Jackson, objection jury. be to to ment the Unlike the

a voluntariness presence undisputed, explored the facts are here out of the essential judge jury, opportunity to trial to both sides the could find voluntariness with law, give versions, unless it clear that as a matter of Butler v. their is wholly States, U.S.App.D.C. objection Luck F.2d 122 350 the is frivolous.” States, (1965), U.S.App.D.C. 1 sub nom. 121 789 n. v. United (1965).11 States, the Here v. United 384 U.S. 766 Greenwell (1966). judge trial risk of er- ran the reversible Stevenson, by permitting Moreover, be 379 to Boles ror the statement unlike v. jury any exploration prior 109 read the to U.S. 85 13 to States, surrounding (1964) , circumstances. See and see Curtis v. United Tooisgah States, U.S.App.D.C. F.2d 718 v. United ; (10 1943). appellant’s (1965) States, If subse- Cir. Green v. United quent testimony App.D.C. (1965), credible had indicated a F.2d statement, possibility independent judicial that his written determination findings appel supra, prerequisite footnote 7 had been effective unconstitu- tionally coerced, “clearly or that a it would late are here seem review evident” been declaration a mistrial have from record. See would “ascertainable” injustice required 368, 378-379, Denno, in order to avoid the Jackson v. by appear (1964). Jackson. denounced Nor does it determining judge in the trial present however, no case, In the voluntary nature of the statement Feinberg by harm resulted to reason excessively by truth, as in influenced its judge’s pre the trial a failure hold supra, or Hutcherson v. United liminary hearing specific or to make mistrial, a desire see Luck to avoid a findings as to voluntariness. States, supra F.2d 765- v. United hearing had the full benefit of a factual clearly undisputed facts here the on his claim of involuntariness without demonstrate voluntariness. prejudice privilege refuse to tes apparent justice is no end tify jury It before behalf his own would served a slavish adherence independently chosen preliminary requiring rule a hear- hearing Had a take the stand. formal ing. Tooisgah See v. United su- presence jury outside 716; pra Ander- 137 F.2d at Williams v. held, undisputed gleaned facts 1966). (3 son, If the 362 F.2d 1011 Cir. appellant’s testimony would have necessi required remand, rule us to finding by judge tated the trial of vol a. upon remand not would be entitled first untariness and state- a submission of the beyond (1948). Jaclcson was decided the a States reasonable doubt. United After Inman, Fourth Circuit instructed trial courts its essentially pro- 1965). that, This the same the voluntariness cases where questioned, adopted New cedure courts of a defendant’s statement Appeals away hearing preliminary York the New York Court of be held should People Huntley, presence jury N.Y.2d from the so that testify (1965). N.Y.S.2d N.E.2d can be cross-examined accused solely with reference whether court A claim cannot be found frivolous coerced. statement was briefly questioning interrogaüng findings explicit of of fact then make should and, ver ficers defendant’s if it is the statement determined doubt, beyond voluntary sion. Luck v. United a reasonable App.D.C. 151, n. 765-66 submitted to should be statement repetition Following jury together Carignan, testimony concerning S.Ct. 97 the claimed relevant an coercion, it would seem essential to be instructed opportunity they recite the contents accused have are to consider upon facts, presence bearing relevant outside issue statement jury, guilt dismisses And before the unless of defendant’s voluntary claim frivolous. one have been

71 estoppel “independent collateral doctrine of to an While a new trial but cases, applicable to criminal the issue indeed judicial determination” 575, Denno, supra, States, voluntariness, v. Sealfon v. United 332 U.S. Jackson (1948), (1964) 237, 1774 68 92 L.Ed. 180 84 S.Ct. U.S. at 378 S.Ct. already relitigating party estopped re- he has from determination this party error no Thus we find reversible same issues must have been a ceived. litigation. into of the statement the initial v. United admission Serio Cir.1953); procedure States, evidence, (5 trial or in the 203 F.2d 578 determining testing F.Supp. adopted Wapnick, United court States v. curiam, admissibility. (EDNY 1961), per its aff’d denied, Cir.1963), (2 cert. 315 F.2d 96 Admissibility The III. of Cioffi’s (1965); Unit Testimony Kramer, supra F.2d at ed States v. identity of 913. There is insufficient Joseph Cioffi testified At federal interest between the state and concerning participation appellant’s governments prosecuting intrastate registration purchase of a stolen offenses, respectively, interstate testimony April Pontiac in 1960. This Sutton, F.Supp. United States v. prove appellant was introduced to that (D.Md.1965), 359-360 treat to warrant guilty knowledge had the source as to ing party, the Government here as a or prior the Lincoln to its interstate privy, appellant’s even as liti initial transportation Appellant, gation acquit prior which resulted in the previously, have as we noted tal in the state court. acquitted York in a New state court of charge criminally that he had received Moreover, even we were to treat argues Pontiac, and he the in party pros- Government as a subjects testimony of this him troduction appellant, ecution the in order to sustain jeopardy, or, alternatively, to double claim, must show that facts re- testimony relates to an which issue sought lated Cioffi exclude which he was determined court at the state from the second trial must have been collaterally and the Government es- “necessarily determined” the verdict topped presenting it here. acquittal in the first Adams v. trial. States, (5 United Cir. argument The first branch of this 1961). On this record we cannot ascer- summarily by noting be dismissed appellant’s tain the basis former ac- neither of the essential elements quittal testimony or the extent of Cioffi’s identity plea jeopardy, e., of double i. an here, at that trial. Inasmuch as sovereigns, successive Abbate v. claiming estoppel, has the burden States, United proving the testified-to facts (1959); 3 L.Ed.2d 729 States sought excluded at the trial below (2 1963), Wapnick, 315 F.2d 96 Cir. actually concluded state 83 S.Ct. acquittal, court Moore v. United identity (1965), and an U.S.App.D.C. 173, alleged offenses, 2 Wharton’s Criminal Evidence, (1966 Supp.), (1965); n. 20 v. International §§ 653; Williams United Building 502, 506, Co., (5 1950); Cir. States has failed 97 L.Ed. 1182 Kramer, 1961), (2 carry burden, his claim present acquittal are A here. former particular is of trial court erred in upon charge presen one is nó bar to the no avail to him. subsequent prosecution tation in a for a different appellant’s offense of facts relevant We have examined prove remaining contentions, including the defendant committed the latter charge offense. Pilcher v. United did claims that the trial court’s Cir.1902). F. adequately protect him and that support his was insufficient evidence be devoid find them all to

conviction. We

of merit. judgment is affirmed. below *12 Judge:

HAYS, Circuit

I result. concur INC., ASSOCIATES, &

WHITLOCK Whitlock, Appellants, L. E. Miller,

George AARON, B. Houston Jack Kennedy Hill, and Frank C. J. D. Ryburn, Appellees.

No. 8688. Appeals

United States Court

Tenth Circuit.

Aug.

Rehearing Denied Oct.