537 F.2d 15 (2nd Cir. 1976), 507, United States v. Duvall

Docket Nº:507, 508, Dockets 75-1225, 75-1335.
Citation:537 F.2d 15
Party Name:UNITED STATES of America, Appellee, v. Thomas DUVALL and Henry Jones, Defendants-Appellants.
Case Date:February 26, 1976
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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537 F.2d 15 (2nd Cir. 1976)

UNITED STATES of America, Appellee,

v.

Thomas DUVALL and Henry Jones, Defendants-Appellants.

Nos. 507, 508, Dockets 75-1225, 75-1335.

United States Court of Appeals, Second Circuit

February 26, 1976

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[Copyrighted Material Omitted]

Argued Dec. 1, 1975.

Certiorari Denied July 21, 1976.

See 96 S.Ct. 3173.

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Jesse Berman, New York City, for defendant-appellant Thomas Duvall.

Ozro Thaddeus Wells, New York City, for defendant-appellant Henry Jones.

T. Barry Kingham, Asst. U. S. Atty., New York City (Thomas J. Cahill, U. S. Atty., S.D. N. Y., and John D. Gordan, III, Asst. U. S. Atty., New York City of counsel), for appellee.

Before LUMBARD, FRIENDLY and MULLIGAN, Circuit Judges.

FRIENDLY, Circuit Judge:

Thomas Duvall and Henry Jones appeal from a judgment of the District Court for the Southern District of New York convicting them, after a verdict, on a count of conspiring to possess stolen mail and to utter United States Treasury checks bearing forged endorsements in violation of 18 U.S.C. § 371 and on substantive counts charging possession of stolen mail and uttering forged Treasury checks in violation of 18 U.S.C. §§ 495 and 1708. The Government's claim was that the defendants, who operated a series of grocery and food-related stores in Harlem, including "The Prodigal Son," "The Nile Market," "Your Bakery," and the "Shabazz Steak and Take," paid suppliers and made bank deposits with stolen United States Treasury checks which

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bore forged endorsements, checks they would replace with still other stolen and forged Treasury checks if those initially passed came back. Almost the sole issue at trial was the defendants' guilty knowledge. The Government's evidence was ample to support the convictions, and there is no need to discuss the contentions, advanced by Jones and adopted by Duvall, relating to the merits.

I.

The serious question, raised and raisable only by Duvall, is that the court erred in failing to suppress false exculpatory statements and minor inculpatory statements made by him. Some of these were made in an interview with Secret Service Agent Gniazdowski in the early evening of the day of Duvall's arrest; others were made in an interview the next morning with an Assistant United States Attorney prior to Duvall's arraignment. Duvall contends that the admission of these statements violated his Sixth Amendment right to counsel, the rule prohibiting use of involuntary statements, his Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the McNabb-Mallory rule, McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). The circumstances under which these statements were made were the subject of a lengthy suppression hearing.

At 2:00 p. m. on June 3, 1974, Agent Gniazdowski, who had been in charge of the investigation, met with an Assistant United States Attorney (who was not the assistant who tried the case or argued the appeal) in the latter's office. They prepared complaints against Duvall, Jones and a co-defendant Porter, who was later acquitted. A stake-out of The Prodigal Son had been in effect since 1:00 p. m. Shortly before 2:45 p. m. the Assistant U. S. Attorney and Gniazdowski went before a magistrate. Gniazdowski swore to the complaints, these were filed, and the magistrate issued arrest warrants. Gniazdowski then radioed his men in Harlem to arrest the three defendants.

Duvall was promptly arrested as he was driving his car north on Madison Avenue not far from the store, with a passenger in the front seat. Nine agents, in three cars, forced him to stop. All the agents were armed with .357 magnum handguns; two of the agents, Schwarick and Doyle, leveled shotguns at Duvall's head during the arrest. Agent Schwarick ordered Duvall to leave the car. Agent Chodosh pulled the passenger out. 1 Another agent nudged Duvall out of the automobile by punching him in the shoulder. Neither Duvall nor the passenger was armed and the record contains evidence that the agents expected the defendants to be unarmed.

After a pat-down Duvall was placed in the back of a Secret Service car with his hands cuffed behind him. Agent Schwarick sat with him, Agent Chodosh was driving, and another agent was in the front passenger seat. When Duvall asked what was up, Schwarick informed him that he had been arrested on a warrant by Secret Service Agents for passing forged Treasury checks. Schwarick testified, and the court found, that he gave Duvall the Miranda warnings. Agent Chodosh claimed that Duvall had made an oral waiver. Duvall denied this and the court made no finding on the subject but the point is immaterial since there was no questioning in the car.

Duvall arrived at the Secret Service office at 90 Church Street a few blocks from the courthouse shortly after 4:00 p. m. Gniazdowski testified that the purpose of taking Duvall there was to photograph and fingerprint him. There would have been ample time for doing this before the magistrate left around 6:00 p. m. Instead Agents Schwarick and Chodosh placed Duvall in an interrogation room where he was ordered to

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strip and was given a strip search. 2 While Duvall was dressing, Agent Chodosh left the room to obtain a Secret Service form entitled "Warning and Consent to Speak." This contains three parts, a "Warning of Rights," fully conforming to the Miranda requirements and containing a sentence "I have read this statement of my rights and it has been read to me, and I understand what my rights are," followed by a line for signature; a detailed "Waiver," 3 again followed by a line for signature; and a "Certification" form for the agent and two witnesses. Agent Chodosh read the form aloud, gave it to Duvall to read, and asked him to sign it. Duvall did this at about 4:20 p. m. He claimed that the reading of the form and his signature were preceded by Chodosh's telling him he "would never see the light of day" unless he cooperated. Chodosh, who had testified before Duvall, had not been asked about this, the Government did not recall him at the suppression hearing, and the court made no specific finding on the subject.

Agent Gniazdowski made his first appearance in the interrogation room at this juncture. He orally advised Duvall of his rights, said it "would be good for him to cooperate if he wanted to," and asked Duvall if he understood. Duvall answered in the affirmative. He was then fingerprinted and photographed. After some time Gniazdowski reappeared, around 7:00 p. m., and said, "The rights I told you a while ago still stand. I am going to ask you a few questions, Okay?" According to Gniazdowski, Duvall said "Yes." Duvall admitted owning the store and being president of The Prodigal Son and paying bills with Treasury checks, but denied using the name "Benjamin Young" or seeing or signing one of the checks use of which was charged in the indictment.

By the time the questioning was over, the magistrate had gone. Duvall was taken to the West Street detention center at 7:21 p. m., where the typical prisoner voucher was filed. 4 The kitchen was closed and no effort was made to provide Duvall with food that evening. 5 Although the entry of Duvall's lodging at West Street indicated that he was to be removed at 9:00 a. m. for arraignment, he and the other defendants were not picked up until 10:58 a. m. They were first taken to the office of the Secret Service for return of their personal property and then to the office of the Assistant U.S. Attorney, where Gniazdowski, an Internal Revenue agent and a postal inspector were present. The Assistant U.S. Attorney admitted that the purpose of the interview was "to get information" from Duvall.

The Assistant U.S. Attorney informed Duvall of the offenses with which he was charged but did not mention that a complaint had already issued. Duvall testified that the Assistant U.S. Attorney had said the charges carried "a possible sentence of a hundred years"; the Assistant U.S. Attorney couldn't "say that I did not use that phrase or something like it." He read Duvall his "rights" from a form; he followed the reading of each "right" by asking whether Duvall understood it and noted "Yes." The form concluded with a question, "Understanding your rights as I have explained them, do you want to give me

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some information at this time about your background and your version of the facts?" He recorded Duvall as having answered "OK you can ask your questions."

The Assistant U.S. Attorney told Duvall that in a few minutes he would be taken before a magistrate who would fix bail. Duvall testified that the Assistant had said "these cases don't usually go to Court" and that from this he drew the inference that if he answered the Assistant's questions the Assistant "was going to allow me to leave." The Assistant, whose memory of the episode was not particularly good, would not deny that he had sought cooperation but testified that if he had said anything on the subject, it was only that if Duvall cooperated, he would be permitted to plead to one or more felony counts and the nature and extent of his cooperation would be brought to the attention of the sentencing judge. The court did not resolve the conflict. Duvall proceeded to make further statements, most of them being false exculpatory ones. These included denials that he had ever paid suppliers with Treasury checks and that he had ever paid Holtzman Carpet with anything but cash both of...

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