Freije v. United States, 7156-7158.

Decision Date20 March 1969
Docket NumberNo. 7156-7158.,7156-7158.
Citation408 F.2d 100
PartiesArthur J. FREIJE, Defendant, Appellant, v. UNITED STATES of America, Appellee. Russell P. SAIA, Defendant, Appellant, v. UNITED STATES of America, Appellee. Alfred SARNO, Defendant, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — First Circuit

Clifford J. Ross, Manchester, N. H., by appointment of the Court, with whom Charles Solms, III, and Eaton, Eaton, Ross & Moody, Manchester, N. H., were on brief, for appellant Arthur J. Freije.

Alexander J. Kalinski, Manchester, N. H., by appointment of the Court, for appellant Russell P. Saia.

Martin L. Gross, Concord, N. H., by appointment of the Court, for appellant Alfred Sarno.

William H. Barry, Jr., Asst. U. S. Atty., with whom Louis M. Janelle, U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

In 1966 the grand jury returned a twelve count indictment charging the defendants with violation of 18 U.S.C. § 2312 (the Dyer Act) and 18 U.S.C. § 371 (conspiracy). The first six counts charge Saia alone with interstate transportation of stolen automobiles. Counts VII, X and XI charge Freije alone with this offense; Count VIII charges Sarno and Count IX names both Saia and Freije. Each of these counts applies to a different automobile. Count XII charges a conspiracy on the part of all three defendants.

When the case first came to trial Saia pleaded guilty to the first six counts and the other counts against him were dismissed. In addition Count XI (against Freije) was dropped. Conviction of Freije (on three substantive counts and conspiracy) and Sarno (on one substantive count and conspiracy) resulted but we reversed and remanded for a new trial. See Freije v. United States, 386 F.2d 408 (1st Cir. 1967). Shortly before the second trial Saia was allowed to change his plea to not guilty as to the first six counts and was accordingly tried with Freije and Sarno. For reasons of double jeopardy, however, Counts IX and XII were not reinstated as to Saia. At the second trial the district court, sitting without a jury, found Saia guilty on Count II and found Freije and Sarno guilty on the conspiracy count only.

The record of the second trial reveals that the defendants were connected with an auto sales business in South Boston known variously as King Motors or Prudential Motors. Saia and Sarno worked in Boston whereas Freije served as a finder of potential customers in the Manchester, New Hampshire area. Although the business was duly licensed, there were certain irregularities in connection with its acquisition of automobiles. In the usual case the automobile was purchased on a loan basis and was then resold. The main issues presented are whether there was any intent to keep up the payments on these loans, since otherwise the vehicles would be "stolen" within the meaning of the Dyer Act,1 see United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957); also, whether the automobiles were transported with knowledge of any such felonious arrangement.

Defendant Freije appeals on one issue only. After certain of the cars were repossessed by the original dealers, agent Madden of the FBI called Freije from the Manchester Police Station and suggested an interview. Freije went to the police station and now complains because he was not warned of his rights as required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).2 Agent Madden testified that he merely requested an interview with Freije and that he had not specified the police station but "told him I would meet him any place or talk to him any place he so desired." Whereupon, according to agent Madden, "he suggested I stay there and he would come over to the Manchester Police Department, which he did." Freije, on the other hand, testified3 that Madden had ordered him down to the police station and that he felt that he was not free to leave. After hearing this, the district court permitted agent Madden to testify concerning the interview, ruling that Freije "submitted to the interview without any compulsion or sense of obligation that would impose the requirements that the Supreme Court indicated in the Miranda decision."

The question then is whether the district court misinterpreted the Supreme Court's definition of custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, supra, at 444, 86 S.Ct. at 1612. We think it did not. The record is reasonably susceptible of the interpretation that Freije was in no way compelled to come to the police station, much less to answer questions. Indeed, when he saw fit Freije declined to answer any more questions and there is no suggestion that anyone challenged his right to do this.

At oral argument counsel for Freije placed great stress on what he regarded (with acquiescence of government counsel) as a mistake in the record as to a portion of Freije's testimony. In the statement, "I figured until I got out and saw somebody, that I wasn't going to stay any more" (emphasis supplied) counsel suggested that "stay" was interpolated for "say." Moreover, Freije himself seemed to distinguish sharply between his right not to answer questions (which he obviously recognized) and his right to terminate the interview by leaving (which he claims he did not). The argument then, we suppose, is that since he believed he was not free to leave, he was in custody for purposes of Miranda and should have been warned of his unqualified right to counsel.

The district court, which was free to disbelieve entirely the self serving testimony of Freije, found that this was not a custodial interrogation. See Hicks v. United States, 127 U.S.App.D.C. 209, 382 F.2d 158, 162 (1967): "Questioning of a witness cannot be characterized as `custodial interrogation' simply because it occurs at a police establishment, * * since she never attempted to leave the presence of the police, it cannot be said that her presence at Headquarters was against her will * * *." Compare with the instant case, United States v. Harrison, 265 F.Supp. 660 (S.D.N.Y. 1967) where the district court was not favorably impressed with the government's claim that the defendant came to the police station voluntarily. There the police came to the defendant's home and "suggested" that he accompany them to the police station. Thus two distinguishing factors are present: (1) The police officers physically came to get him. (2) It is undisputed that the defendant was given no alternative to the police station as the situs of the interrogation. Also see United States v. Knight, 261 F.Supp. 843 (E.D.Pa.1966). In that case an air force investigator telephoned a former airman and, after telling him that they were investigating certain matters that had occurred at a base during the airman's tenure there, sought to arrange an appointment. The airman agreed to come to the investigator's office and the resulting interrogation was held to be non-custodial.

Finally, the criterion for determining whether an interrogation comes within the Miranda rule is not purely subjective. Thus, even if it be assumed that Freije really believed that he was not free to leave the interrogation,4 it would not inevitably follow that the warnings should have been given. See People v. P., 21 N.Y.2d 1, 286 N.Y.S.2d 225, 233 N.E.2d 255 (1967); cf. Hicks v. United States, supra, at 161.5

We turn now to defendant Saia's contentions. Theodore Solomon, a contact of Freije's in Manchester, purchased a 1965 Chevrolet Impala convertible (the Count I vehicle) through Freije in the fall of 1965. Shortly thereafter the automobile developed serious mechanical problems. Freije and Sarno then promised Solomon to get him another car, a 1966 Chevrolet Impala convertible, conditioned, however, on the payment of an additional five hundred dollars. It was in connection with this second car, the Count II car, that Saia was convicted.

On November 17, 1965, one Francis Ryan purchased this vehicle from Seymour Chevrolet in Cambridge, Massachusetts for an agreed price of $3,195. The financing was arranged through GMAC. Ryan picked up the car around 5 p. m. the same day. Later the same evening Solomon received his new car at a parking lot near a club in Manchester where he was employed. According to Solomon, Saia came to the club and told Freije that the car had arrived. After receiving his car, Solomon gave Saia a ride back to Cambridge, Saia being without transportation. Freije remained in the club. This was repossessed from Solomon on February 25, 1966, in Manchester because GMAC did not receive any payments.

The financial arrangements on the Count I vehicle were as follows. It was purchased by Paul J. Sullivan for $3,050 at West End Chevrolet, Waltham, Massachusetts, on or about October 11, 1965, and the credit information was called in to West End by Saia. There was a $550 down payment plus a conditional sales contract for $2,500 with the bank that financed the sale. A perfunctory check on Sullivan conducted by the bank revealed that such a person seemed to exist, was employed, etc. Shortly thereafter Solomon purchased this same car through Freije for $3,050 and paid for it outright, having arranged his own financing.

The second sale on this car was discovered not because of default in payments, although no payments were made, but because the garageman making the repairs under the warranty listed Solomon as the owner. Since this did not square with the dealer's records, the dealer reclaimed the car and it was back in his inventory less than a month after the Sullivan purchase. After the repossession West End regarded Saia as Sullivan's agent.

Saia arranged a total of five sales with West End. When West End demanded payment in full for all of them,...

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