497 F.2d 935 (5th Cir. 1974), 73-2511, United States v. Menichino

Docket Nº:73-2511.
Citation:497 F.2d 935
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Andrew Carmen MENICHINO, Defendant-Appellant.
Case Date:July 29, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 935

497 F.2d 935 (5th Cir. 1974)

UNITED STATES of America, Plaintiff-Appellee,

v.

Andrew Carmen MENICHINO, Defendant-Appellant.

No. 73-2511.

United States Court of Appeals, Fifth Circuit.

July 29, 1974

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Gerald A. Messerman, Cleveland, Ohio, for defendant-appellant.

Robert W. Rust, U.S. Atty., Barbara E. Vicevich, Asst. U.S. Atty., Samuel Sheres, Sp. Atty., Dept. of Justice, Miami, Fla., for plaintiff-appellee.

Before RIVES, WISDOM and MORGAN, Circuit Judges.

WISDOM, Circuit Judge:

Andrew Menichino appeals his conviction and the sentence imposed after a jury brought in a verdict of guilty against the defendant on charges of conspiracy and importing and possessing with intent to distribute a Schedule II narcotic controlled substance (cocaine). Menichino first asserts that several incriminating statements he allegedly made after he was arrested were allowed in evidence in violation of the strictures set out in Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and its progeny. Menichino next contends that an out-of-court statement linking him to the purchase of cocaine was admitted in violation of his right to confront the witnesses against him and without sufficient independent evidence of his participation in a conspiracy to justify the government's invoking the co-conspirator exception to the hearsay rule. Finally, the appellant maintains that the disparity between his sentence and that imposed on his co-defendant is violative of his rights to the equal protection of the laws and to trial by jury, and that his severe sentence may have resulted from the improper use of an erroneous presentence report. We find all of these contentions to be without merit. We affirm.

I.

On February 2, 1973, Menichino's codefendant, Stephen Thomas Brown, and a friend named Taron Caine left the United States for Bogota, Colombia, to start a clothing business. On February 14, 1973, Caine told Brown that before leaving the United States he had received ten thousand dollars from a person whom Brown had met, but knew only as 'Andy'. As Andy had instructed, Caine related, he had used the money to purchase 3.3 pounds of cocaine, which he and two unnamed Colombians had secreted in a suitcase. Caine asked Brown to take the suitcase to Grand Rapids, Michigan, to call 'Andy', and to give him the cocaine. Brown agreed, and flew from Bogota to Miami with the contraband, but upon his arrival at the Miami Airport, the cocaine was discovered in a routine customs inspection and Brown was arrested. After his arrest, Brown agreed to cooperate with customs authorities, and to deliver the cocaine as Caine had directed.

On February 19th, Brown and a special customs agent flew to Detroit, drove to Grand Rapids, and, after they had been joined by other customs agents with recording equipment, called the telephone number given Brown by Taron

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Caine. They recorded a brief conversation with a woman who gave them the number of a pay telephone, at which they could reach Andy 'in twenty minutes'. Brown made the second call, which was also recorded, and a meeting was arranged between Brown and Andy at the cocktail lounge of a nearby Howard Johnson's restaurant. At the restaurant, 'Andy', who was identified as the defendant-appellant Andrew Menichino, asked Brown how much cocaine he had with him, and remarked that he could sell it all within a week to ten-day period. A handbag containing some cocaine (and several pounds of dextrose which had been substituted for the bulk of the shipment) was exchanged, and Menichino left, but was apprehended as he drove from the restaurant parking lot. On the seat of the car was the handbag containing the cocaine which Menichino had received from Brown.

Upon arrest, Menichino was advised of his rights. He stated that he understood them, and was taken to a police station for procession. When he arrived, a written form advising him of his rights was read to the appellant, and he again stated that he understood his rights, but declined to make a statement or sign the waiver or rights form and requested that he be permitted to call his attorney. He was told that he could call his attorney as soon as the 'biographical' was taken, a process during which he would be fingerprinted, photographed, and asked to provide such information as his name, address, and social security number for police records. Menichino agreed. During this period there was no interrogation about the crime by police officers or customs agents.

Nonetheless, several statements introduced at trial were volunteered by Menichino during this period. While the biographical information was being obtained, Menichino asked what charges would be filed against him. He was told that he would be charged with smuggling narcotics, illegal importation of narcotics, and possession of narcotics with intent to distribute. Menichino then said, 'I don't know if you guys got me on those smuggling charges, but you sure have me on possession.' Later, another agent entered the room, remarked that he had been inventorying Menichino's automobile, and asked him a question about it. Menichino said, 'I was lucky I was driving the Olds, you don't think I want you guys driving my Jaguar.' Menichino also asked an agent, 'How long have you had my phone tied up?' He apparently made two further statements, again without prompting from the agents or other law enforcement officers present: 'You guys just got the small load, you missed the big one'; and 'You guys have a good time on that stuff, that stuff is good.' 1 Even after these statements were made, no follow-up questions were asked by the agents, and once the booking process was complete, Menichino called and spoke to someone whom he identified as his attorney. He was then taken to the county jail.

Menichino was charged in a three-count indictment with (1) illegally importing cocaine into the United States in violation of 21 U.S.C. § 952 and 18 U.S.C. § 2, (2) possessing cocaine with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and (3) criminal conspiracy to violate 21 U.S.C. § 952(a). Brown was similarly charged. Both defendants pleaded not guilty, but on the day the trial commenced, May 22, 1973, Brown withdrew his not guilty plea, submitted a plea of guilty to the conspiracy count, and the other charges were dropped. Menichino

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was then tried alone, and Brown testified for the prosecution. Menichino was found guilty on all three counts. At sentencing, Menichino's attorney asked to see the defendant's presentence report. This request was complied with. and Menichino then received concurrent seven-year sentences on each of the three counts, and a three-year special parole term as well. Brown was sentenced to two years probation, plus a three-year special parole term which was suspended.

II.

The appellant's first contention compels us to examine four of our post-Miranda decisions: United States v. McDaniel, 5 Cir. 1972, 463 F.2d 129, cert. denied 1973, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041; United States v. Ramos, 5 Cir. 1971, 448 F.2d 398; United States v. Phelps, 5 Cir. 1971, 443 F.2d 246; and United States v. Hopkins, 5 Cir. 1970, 433 F.2d 1041, cert. denied 1971, 401 U.S. 1013, 91 S.Ct. 1252, 28 L.Ed.2d 550. Each of these decisions concerns, in a slightly different context, the problem that confronts us here: the interplay between Miranda's requirement that law enforcement officers unequivocally advise suspects that they have a right to consult counsel immediately, before undergoing custodial interrogation, and its caveat that statements volunteered by a suspect may be admitted against him at trial. Here, when counsel was requested, interrogation as to the defendant's involvement in criminal activity ceased; but counsel was not immediately provided, and apparently the defendant made voluntary but incriminating statements during the interim.

Although the parties do not really contest the context in which the statements were made, they vigorously dispute its significance. Thus, Menichino contends not only that his statements were improperly admitted at trial, but that the affront to Miranda was two-fold. First, although he was advised of his right to counsel and his right to remain silent, the warning was a qualified one, since he was told that counsel would be available only after the 'biographical' was taken and processing was complete. Such a warning, Menichino maintains, indicating that counsel would be available only in the future, runs afoul of Miranda's requirement that counsel be made available 'here and now.' See Lathers v. United States, 5 Cir. 1968, 396 F.2d 524, 535. Second, once he had indicated a desire to remain silent and to consult an attorney, the officers...

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