U.S. v. Masse, 85-1409

• Citation: 816 F.2d 805
• Decision Date: 05 December 1986
• Docket Number: No. 85-1409,85-1409
• Parties: 22 Fed. R. Evid. Serv. 1777 UNITED STATES of America, Appellee, v. Stephen O. MASSE, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 805

816 F.2d 805

22 Fed. R. Evid. Serv. 1777

UNITED STATES of America, Appellee, v. Stephen O. MASSE, Defendant, Appellant.

No. 85-1409.

United States Court of Appeals, First Circuit.

Heard Dec. 5, 1986.

Decided April 21, 1987.

James F.X. Dinneen, Boston, Mass., for defendant, appellant.

Gary S. Katzmann, Asst. U.S. Atty., with whom Robert S. Mueller, III, U.S. Atty., Boston, Mass., was on brief for appellee.

Before CAMPBELL, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

Stephen O. Masse was convicted in the United States District Court for the District of Massachusetts for distributing cocaine in violation of 21 U.S.C. Sec. 841 (1982) and 18 U.S.C. Sec. 2 (1982). He assigns a number of errors on appeal, none of which we find has merit. We affirm.

I. FACTS

Masse was indicted following an undercover operation conducted by the United States Drug Enforcement Agency ("DEA"). On November 6, 1984, DEA agent Fencer, posing as a drug buyer made three telephone calls to Joseph Waterhouse seeking to buy one pound of cocaine. After discussing the price and other related issues, the two men agreed they would consummate the transaction the next day, November 7, 1984, at the Holiday Inn on Blossom Street in downtown Boston.

At about 1:30 p.m. on November 7, Waterhouse, accompanied by two others, arrived in a white Grand Prix at the Holiday Inn. The driver of the car was subsequently identified as appellant Masse. Masse and Waterhouse left the car and began walking toward the hotel's Blossom Street entrance. As Waterhouse approached Fencer, who was standing near the entrance, Masse continued into the hotel lobby. He stayed there briefly before leaving the hotel through its Cambridge Street exit. Two DEA agents, Boeri and Reilly, who were watching from their car, saw Masse cross Cambridge Street and enter Chuck's Submarine Sandwich Shop. While Masse remained in the sandwich shop, Waterhouse handed Fencer a bag containing a white powder that appeared to be cocaine (the substance later field tested positive for cocaine). Fencer thereupon gave the arrest signal, and agents Boeri and Reilly got out of the car from which they had been watching Masse and moved to the doorway of the sandwich shop, where they waited.

When Masse came out of the shop, the two agents approached him. According to Boeri's testimony at the suppression hearing prior to Masse's trial, ¹ the agents immediately identified themselves and said to Masse, "we are conducting a drug investigation. Do you mind talking to us?" Masse agreed, and the agents asked whether he would accompany them to the opposite side of Cambridge Street. Masse acquiesced. ² Agent Boeri testified that once Reilly, Masse and he crossed the street, events unfolded as follows:

[O]ne of us, Reilly or I--I think I may have said it--"How did you get here?" He says, "My car." I said, "What kind of car do you have?" He tells us a black Le Mans, so I said, "Where did you park it?" and he motions, he says, "Up the street," and he is motioning up Cambridge Street away from where the car had originally been on Blossom Street.

So I say to him, I said, "A black Le Mans?" I said "I just saw you get out of a white Grand Prix," at which point in time there was no further conversation, and we advised him, either Reilly or I, we said, "You are under arrest for violation of the federal narcotic laws." I then verbally advised him per the Miranda warnings of his rights.

After handcuffing Masse and placing him in the back seat of their car, the agents once again gave Masse Miranda warnings.

On the way to the police station, and after the second reading of the Miranda warnings, Masse explained to the agents his connection with Waterhouse and the drug deal. He claimed that he had been at home sleeping when he got a call from "these guys" to give them a ride to the Holiday Inn, a service for which he was to be compensated. When asked whether he knew the purpose of the trip to the hotel, Masse admitted to knowing that a "coke deal" was to occur.

At the end of the bail hearing the next day, November 7, Masse and agents Fencer, Boeri and Reilly were standing in the rear of the courtroom when, according to Fencer's testimony at the suppression hearing, Masse stated, "I had nothing to do with this. I don't know what's going on. You guys know I don't know anything, what's going on." After Fencer responded with "Have you talked on the telephone at all in the last six months," Masse allegedly exclaimed, "Well, then, I guess you guys do know what's going on."

A similar conversation occurred on November 9, after Masse had been released on bail and had returned to DEA headquarters to retrieve his car and $697 seized from him at the time of his arrest. While at the headquarters, Masse indicated to agents Fencer and Boeri that he had provided the cocaine to Waterhouse (although also emphasizing that he was just a middleman). ³ Boeri testified at the suppression hearing that, instead of letting Masse continue to incriminate himself, the agents suggested, "Well, ... why don't you get in touch with your attorney and come back and talk with us if you've got something further to discuss about this." There is no evidence of any further incriminating conversation between Masse and any DEA agent.

On November 20, 1984, a federal grand jury sitting in the District of Massachusetts returned a one-count indictment against Masse and Waterhouse. A two-count superseding indictment was returned on November 29. Count 1 of the superseding indictment charged the defendants with conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846 (1982). Count 2 alleged that the defendants "did knowingly and intentionally possess with intent to distribute, and did distribute, a quantity of cocaine," in violation of 21 U.S.C. Sec. 841(a)(1) (1982) and 18 U.S.C. Sec. 2 (1982). Prior to trial, defendant Waterhouse pleaded guilty.

Masse subsequently moved for the suppression of "any statements" obtained by the DEA on either November 7 or November 9. His motion asserted, without explanation, that any such statement was "the product of improper interrogation in violation of his rights under the Fifth and Sixth Amendments to the United States Constitution. Miranda v. Arizona." On February 25-26, 1985, the district court conducted a hearing on the motion, which it ultimately rejected in an opinion delivered from the bench on February 26. Trial commenced on March 15, 1985 and concluded on March 19, when the jury was instructed. At the request of defense counsel, Count 2 was bifurcated into two charges: (1) possession with intent to distribute cocaine, and (2) distribution of cocaine. On March 21, 1985, the jury returned a verdict of guilty on that part of Count 2 alleging distribution of cocaine, while acquitting Masse of all other charges.

II. SUPPRESSION RULING

Masse contends that the district court erred in refusing to suppress the various incriminating statements he made at different times to DEA agents. His initial statements were to agents Boeri and Reilly concerning the location, make and color of his car. They followed the confrontation outside Chuck's Submarine Sandwich Shop on Cambridge Street. Masse says a custodial situation then existed, requiring the immediate giving of Miranda warnings, and rendering the agents' failure to do so here fatal to the later use of those statements. Because of this initial error, Masse also asks for suppression of his later statements--his remarks on the way to the police station following his arrest, at the close of his bail hearing the next day, and at DEA headquarters on November 9. While Miranda warnings preceded all of these, Masse wants them excluded as fruit of the poisonous tree.

In reviewing the court's refusal to suppress, we look only to the record created at the suppression hearing. We recognize that Masse did not choose to testify until the trial itself and that, when he did so, he told a somewhat different story concerning the events surrounding his arrest than had the agents at the suppression hearing. Masse did not, however, ask the district court to reopen its prior suppression ruling, and we see no occasion for this court to look beyond the record at the suppression hearing in determining whether that ruling, based on evidence from that hearing, was properly founded. ⁴

We see no merit in Masse's argument that the statements he made to agents Boeri and Reilly prior to his arrest should have been suppressed because the agents had not given Miranda warnings. Masse was not then in custody. See, e.g., Berkemer v. McCarty, 468 U.S. 420, 434, 104 S.Ct. 3138, 3147, 82 L.Ed.2d 317 (1984) (defendant in a custodial situation must be afforded Miranda warnings before being questioned). The agents' request that Masse talk to them did not create a custodial situation. As the Supreme Court stated in Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977),

[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question.

Accord Podlaski v. Butterworth, 677 F.2d 8, 9 (1st Cir.1982).

A custodial situation necessitating Miranda warnings arises only where "there is 'a formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (quoting Oregon v. Mathiason, 429 U.S. at 495, 97 S.Ct. at 714). Accord United States v. Quinn, 815 F.2d 160, 153 (1st Cir.1987); Fisher v. Scafati, 439 F.2d 307, 310 (1st Cir.) ("[c]ustody, in the Miranda sense, must require at least some objective manifestation...