628 F.2d 711 (1st Cir. 1980), 79-1460, United States v. Indorato

Docket Nº:79-1460.
Citation:628 F.2d 711
Party Name:UNITED STATES of America, Appellee, v. Mario E. INDORATO, Defendant-Appellant.
Case Date:August 21, 1980
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 711

628 F.2d 711 (1st Cir. 1980)

UNITED STATES of America, Appellee,

v.

Mario E. INDORATO, Defendant-Appellant.

No. 79-1460.

United States Court of Appeals, First Circuit

August 21, 1980

Argued May 5, 1980.

Page 712

Willie J. Davis, for defendant-appellant.

Paul E. Troy, Asst. U. S. Atty., Boston, Mass., Edward F. Harrington, U. S. Atty., Boston, Mass., on brief, for appellee.

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Before COFFIN, Chief Judge, and CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Defendant-appellant, Mario E. Indorato, appeals a jury conviction of conspiracy to commit an offense against the United States, theft of property from an interstate shipment, and perjury, in violation of 18 U.S.C. § 371, § 659, and § 2.

We review the facts and all the reasonable inferences to be drawn from them in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Doran, 483 F.2d 369, 372 (1st Cir. 1973), cert. denied, 416 U.S. 906, 94 S.Ct. 1612, 40 L.Ed.2d 111 (1974). Defendant was a lieutenant on the Massachusetts State Police force with over twenty-three years of experience. Starting in February of 1977, he was assigned to the Weston barracks on the Massachusetts Turnpike as a shift commander. As such, he was responsible for the entire turnpike. His normal duty hours were from 3:00 P.M. to 11:00 P.M. The turnpike is divided into seven Sectors for patrol purposes. Sector 1 starts at the New York state line and Sector 7 extends through the tunnel to East Boston. Sector 6 runs from Interchange 12 to Interchange 15, which is in the Town of Weston.

A tandem trailer parking lot is located in Sector 6 at Interchange 14 in Weston. Massachusetts law prohibits the hauling of tandem trailers (trailers hauled behind each other by the same tractor) once a driver leaves the turnpike. The tandem lot is used by drivers to drop off the extra trailer before proceeding to off-turnpike destinations. A full trailer is sealed at the rear so that it is impossible to open the doors without breaking the seal. A person would be unable to tell from looking at a trailer head-on or from the side whether it was full or empty. If the seal has been broken or removed from the trailer doors, that is a good indication that it is empty. Full and empty trailers are parked indiscriminately in the lot so that the location of a trailer is no indication of whether it is full or empty.

The critical events leading to defendant's indictment happened on the evening of December 12, 1978. About a week prior, Corporal Carlson spoke to defendant about homosexuals harassing patrons in the men's room of the Howard Johnson Restaurant on the turnpike in Framingham. He suggested reinstituting the "fag detail," which was comprised of state troopers in civilian clothes. On December 12, defendant told Carlson and another trooper, Whittier, to be in the barracks at 5:30 P.M. to prepare for the detail. This was earlier than the detail had ever started before. Whittier was normally assigned to Troop E which covers the entire turnpike and the tunnels to East Boston. With Whittier on the special detail, there was no patrol supervisor on the road and no one took his place in Sector 7. If a tractor were parked in an unusual place, such as on an access ramp to a tandem lot, Whittier, when on patrol, would notice it and investigate.

Shortly before 3:00 P.M. on the afternoon of December 12, defendant assigned Trooper McHugh to patrol that portion of Sector 7 from the Brighton interchange through the tunnels to East Boston. He was told to pay particular attention to the toll booths at the tunnels because of recent robberies. McHugh was not to patrol the western part of Sector 7 from Brighton to Weston. Usually, each of the two troopers assigned to Sector 7 patrols its entire length from the tunnels to Weston.

At about 5:40 P.M. on December 12, defendant left the barracks at Weston and went to the tandem trailer lot at Interchange 14. He was dressed in full uniform. Usually, when defendant left the barracks, he did not wear his uniform. Defendant used a marked police cruiser called, for obvious reasons, a "blue-bird." This was contrary to his custom of driving an unmarked vehicle. Defendant gave as a reason for using the blue-bird that his vehicle bucked and kicked until it was warmed up. The mechanic responsible for servicing defendant's unmarked cruiser testified that defendant never complained that it warmed up slowly.

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When defendant arrived at the tandem lot, he picked up his cousin, Billy Balliro. Robert Pyne, a city driver for Pacific Intermountain Express (PIE), arrived at the lot around 6:00 P.M. to pick up a trailer. As he came into the lot, he noticed a marked police cruiser parked ten to fifteen feet behind the trailer he had been dispatched to pick up. The headlights of the cruiser were off. A man wearing civilian clothes, a dark stocking hat, and a windbreaker was at the rear of the trailer. As Pyne started to back his tractor toward the trailer, defendant got out of the cruiser, signalled Pyne to stop, and said, "We found your trailer open." The door of the trailer was open about eighteen inches; there was freight inside. Pyne tried to open the door the rest of the way, but could not move it. He then telephoned his boss and explained what he had found. Pyne noticed two other PIE trailers in the lot. On one of them, a heavy metal security wire around the door latch looked as if it had been almost twisted off. The trailer's seal said "Port of Tocoma," which indicated that it was carrying stereo equipment. As Pyne was checking the two trailers, the cruiser pulled up and defendant asked Pyne if he knew what was in them. Although Pyne knew that one contained stereo equipment, he told defendant that he did not know. The cruiser then made a U-turn, went up the access ramp and stopped next to a tractor with its lights out but its engine running. Pyne testified that he had never seen a tractor parked on that ramp before. Four state troopers, Campbell, Mardone, MacLean, and Whittier and another PIE driver, Grenier, also testified that they had never seen a tractor parked on the access ramp. Pyne left the lot with the trailer he was dispatched to pick up and stopped at a phone booth and called the terminal. Another driver, Alfred Grenier, was sent to pick up the trailer with the stereo equipment. He arrived at the lot about 7:30 P.M., but the trailer was gone. A trailer belonging to another company was stolen from the same lot between 5:20 and 8:00 that evening. It was found empty in Cambridge at 8:45 P.M.

Trooper Kevin Regan was on the 3:00 to 11:00 P.M. shift at the Framingham barracks that day. He purchased a sandwich at about 6:30 P.M. and headed towards the tandem lot to eat it. As he drove towards the lot, he saw a blue-bird at the entrance. Defendant waved him to a stop. After some general conversation, defendant asked him what he was doing there. Regan told him that he intended to eat his sandwich there. Defendant suggested that he go to the barracks in Weston to eat it. Although Regan said he would rather eat in the lot, defendant insisted that he eat the sandwich at the Weston barracks, which he did. This was the first time that he had eaten alone in the Weston barracks.

The events subsequent to December 12, 1978, bear mainly on defendant's claim that his fifth amendment rights were violated.

The Fifth Amendment Claim

It is defendant's contention that statements made by him in response to questions by his superiors were coerced and, therefore, proscribed by the fifth amendment from being used at his trial.

We focus now on the investigation of defendant that followed the events of December 12. Special Agent Edward Clark of the F.B.I. interviewed defendant the afternoon of December 13, after first talking to Pyne, Grenier and PIE Terminal Manager Martin. When asked by Clark who was with him when he was talking to Pyne, defendant replied that it was an off-the-road trooper and identified him as Trooper Regan. Defendant said he did not remember any tractor parked on the access ramp. On December 22, there was a meeting at State Police Headquarters in Boston at which defendant's possible role in the theft of the trailers was discussed. Those in attendance were Deputy Superintendent Trubuco, Lieutenant Colonel O'Donovan, head of the Detective Bureau, and Captain Cronin, defendant's immediate supervisor. They knew that an interview between defendant and Lieutenant White, a state police detective, and two F.B.I. agents was scheduled for later that afternoon. It was suggested that, if defendant did not cooperate

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fully with White, he be required to give Captain Cronin a memorandum setting forth in detail his activities on December 12.

Defendant met with White and the F.B.I. agents that afternoon at the Howard Johnson Restaurant on the turnpike in Natick. He was not advised of his rights prior to questioning. It is clear, however, that he was not in custody. Among other things, defendant stated that he picked up an informant about 5:00 o'clock at the tandem lot. He refused, despite repeated questions, to give the informant's name on the ground that to do so might mean that person's death. After it became evident that defendant would not name the informant, White advised him that he was going to call Colonel O'Donovan and left the table to do so. When White returned to the table after talking to O'Donovan, defendant said, "If push comes to shove relative to my informant, I will make the decision at that time." Whereupon White said, "The time has come, push has now come to shove. I want the name, address, and telephone number of your informant this minute." Defendant then identified the informant as Billy Balliro.

After the meeting, defendant returned to the Weston barracks. Captain Cronin had him come into his...

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