William TOSTE, Petitioner-Appellant, v. Raymond M. LOPES, Respondent-Appellee.
No. 285, Docket 88-2124
United States Court of Appeals, Second Circuit
Argued Nov. 2, 1988. Decided Nov. 17, 1988.
861 F.2d 782
Further, Blanco contends that she was prejudiced by the admission of evidence concerning arrests of drug couriers, seizures of drugs, and conversations between suspected drug dealers. She argues that this evidence had little or nothing to do with her. This argument has no merit. The prosecution introduced this evidence to prove that Blanco was part of a drug importing conspiracy, and the district court admitted the evidence because it was linked to Blanco. For example, Judge Cannella admitted evidence of Antonio Romero‘s 1972 arrest at Kennedy airport in connection with efforts to smuggle cocaine into the United States in a dog cage. The link between this evidence and Blanco was Caban‘s testimony that Blanco in 1972 had discussed with a cohort the use of dog cages to smuggle cocaine into New York and later that year discussed with the cohort their losses when one of their couriers was arrested at Kennedy Airport for trying to smuggle cocaine in a dog cage.
Finally, Blanco argues that the district judge erred in his jury charge because he never targeted for the jury‘s consideration the factors to consider in deciding whether a single conspiracy existed. This is incorrect; in his charge Judge Cannella instructed the jury that it could find no conspiracy, or it could find more than one, and that if it did not find there was a single conspiracy, it could not convict. It is a proper instruction in a prosecution charging existence of a conspiracy to stress that the jury may not convict unless there is a finding that the single conspiracy charged existed, see United States v. Tramunti, 513 F.2d 1087, 1108 (2d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975), and that proof of separate conspiracies is not sufficient, see United States v. Nersesian, 824 F.2d 1294, 1302 (2d Cir.), cert. denied, U.S., 108 S.Ct. 357, 98 L.Ed.2d 382 (1987). Measured against this standard, Judge Cannella‘s charge clearly was proper.
For the foregoing reasons, the judgment of the district court is affirmed.
Robert E. Precht, New York City (The Legal Aid Soc., Federal Defender Services Unit), for petitioner-appellant.
Julia DiCocco Dewey, Asst. State‘s Atty., Wallingford, Conn. (Appellate Unit, Office of the Chief State‘s Atty., Div. of Criminal Justice), for respondent-appellee.
Before KAUFMAN, OAKES and NEWMAN, Circuit Judges.
PER CURIAM:
William Toste appeals from Judge Cabranes‘s order denying his petition for a writ of habeas corpus. Toste was convicted of murder by a jury in the Superior Court, Judicial District of Fairfield, Connecticut on May 8, 1981. He was sentenced to a term of no less than twenty-five years nor more than life. The Connecticut Supreme Court affirmed on appeal. State v. Toste, 198 Conn. 573, 504 A.2d 1036 (1982). Toste filed a petition under
We affirm the order for the reasons stated in Judge Cabranes‘s thorough opinion. Toste v. Lopes, 701 F.Supp. 306 (D.Conn. 1987). The validity of a waiver is a matter for independent federal determination. Brewer v. Williams, 430 U.S. 387, 403-04, 97 S.Ct. 1232, 1241-42, 51 L.Ed.2d 424 (1977); see also Miller v. Fenton, 474 U.S. 104, 106, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) (voluntariness of a confession a matter for independent federal review).
Despite his low intelligence level, Toste validly waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He was advised of his Miranda rights immediately after his arrest. State v. Toste, 198 Conn. at 577, 504 A.2d 1036. After the warning, he orally indicated that he understood and signed a written form acknowledging that he comprehended his rights. Id. at 578, 504 A.2d 1036. At a second questioning session, Toste was again warned of his rights in the same explicit fashion. He again indicated that he understood and signed a statement acknowledging this. Id. at 578-79, 504 A.2d 1036.
While the psychological testimony could support a conclusion that Toste has a per-
OAKES, Circuit Judge (dissenting):
A nineteen-year-old with a mental age of thirteen who had been in and out of institutions, including Willowbrook, from the age of seven to the time he committed the crime, and who had been diagnosed as having “frantic schizophreni[a],” is found competent to have waived his Miranda rights on the basis of non-expert testimony by the police officer who arrested him and took his statement. Since I do not believe it was sufficiently shown that Toste‘s waiver was “made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it,” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986), I respectfully dissent.
Nor can I agree with the district court‘s harmless error analysis endorsed sub silentio by the panel majority. That analysis went only to the substantial evidence that Toste did in fact commit the crime. But Toste‘s defense was not that he did not commit the crime. Instead, it was that he was insane, i.e., as a result of mental disease or defect, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of law. See
I would grant the writ unless the State retries Toste within sixty days but permit the State at a further suppression hearing to adduce expert testimony that he was sufficiently capable of understanding the Miranda warnings to waive them.