Flaherty v. United States, 6574.
| Decision Date | 31 January 1966 |
| Docket Number | No. 6574.,6574. |
| Citation | 355 F.2d 924 |
| Parties | Martin J. FLAHERTY, Defendant, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Francis J. DiMento, Boston, Mass., with whom Ronald R. Popeo and DiMento & Sullivan, Boston, Mass., were on brief, for appellant.
Edward F. Harrington, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., was on brief, for appellee.
Before ALDRICH, Chief Judge, McENTEE, Circuit Judge, and SWEENEY, District Judge.
This is an appeal from convictions and a single sentence on a two-count information charging various wagering tax offenses. The second count is duplicitous, and should have been dismissed. Driscoll v. United States, 1 Cir., 1966, 356 F.2d 324. The first count charged a willful failure to pay the $50 special occupational tax. Defendant objects, inter alia, to the use at trial of certain statements made to the arresting officers. The circumstances were these.
Federal agents arrested defendant on a warrant at his place of employment. Before removing him from the premises, after warning him of his right to remain silent but not of his right to counsel, an agent asked him a series of questions from a prepared form. Defendant answered all the questions, giving miscellaneous personal information, but insisting that he was not in the wagering business. Instead of asking directly whether he knew of the federal revenue requirements (to serve as a basis for charging a willful violation), the form question was phrased hypothetically, whether, if defendant were in the wagering business, he would have registered and purchased a federal stamp (i. e., paid the special occupational tax). The defendant replied, At the trial, over objection, the government introduced defendant's statements of his name, address, and occupation, which it used as a foundation for its evidence that he had not registered or purchased a stamp, and introduced his response to the hypothetical question as an admission of his knowledge that he should have done so.
We cannot believe that after arrest the police must advise a suspect of his right to counsel before asking basic questions going to his identity, such as name, address, and occupation, even though the suspect may not appreciate to what use the answers might be put. Possibly, if a suspect fully understands his right to remain silent, the police can ask straightforward questions that go considerably further without advising him of his right to counsel. Cf. United States v. Cone, 2 Cir., 11/22/65, 354 F.2d 119. This we need not decide, however, for the agent's hypothetical...
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