U.S. v. Bloom, 338
| Decision Date | 10 January 1989 |
| Docket Number | D,No. 338,338 |
| Citation | 865 F.2d 485 |
| Parties | UNITED STATES of America, Appellee, v. Marvin BLOOM and Vincent Anthony Daley, Defendants. Appeal of Vincent Anthony DALEY, Defendant-Appellant. ocket 88-1186. |
| Court | U.S. Court of Appeals — Second Circuit |
George V. O'Haire, Hicksville, N.Y., for defendant-appellant Vincent Anthony Daley.
Peter E. Ball, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Emily Berger, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellee.
Before WINTER and MINER, Circuit Judges, and MUNSON, District Judge. *
Appellant Vincent Daley appeals from his conviction on one count of conspiracy to transport, in violation of 18 U.S.C. Secs. 371, 2314 (1982), and one count of transporting, in violation of 18 U.S.C. Secs. 2314, 2 (1982), in interstate commerce securities known to have been converted. Daley challenged both the indictment and superseding indictment on the grounds that they violated the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174 (1982), and the Sixth Amendment's speedy trial guarantee. These challenges were rejected by the district court. Because Daley was never subjected to a pre-indictment "arrest" for purposes of the Speedy Trial Act and the Sixth Amendment, we affirm the denial of Daley's motions. Daley also claims that the district court should have charged the jury on the voluntariness of his post-arrest statements. Daley, however, expressly waived his right to such a charge.
In November 1983, Bernard and Stanley Myer purchased $500,000 worth of bearer bonds. Bearer bonds are payable, not to a named person, but to whatever person possesses them at their date of maturity. Bearer bonds contain coupons which may be presented seriatim on specified dates to banks for the payment of interest. The coupons will be honored regardless of who presents them. Approximately forty of the bonds at issue in this case, possessing an aggregate face value of $200,000, were delivered to the Myers's liquor store where they were placed in a small office. In January 1984, Stanley Myer discovered that the bonds were missing, and the Myers concluded that Bernard had mistakenly thrown them out with the trash. Stanley subsequently informed his broker of the disappearance of the bonds.
The bonds eventually fell into the possession of Marvin Bloom and appellant Daley. On July 25, 1984, Bloom redeemed $8,000 worth of coupons at Crossland Savings Bank ("Crossland") in Brooklyn, New York. Bloom received the $8,000 in two $4,000 checks, one made out to himself and the other to Christine Daley, appellant's wife and Bloom's daughter. When Crossland presented the coupons to the issuer of the bonds for reimbursement, the issuer informed Crossland that the coupons had come from bonds that had been reported lost. Peter Cunningham, Crossland's Director of Security, then contacted Bloom and requested that he return the $8,000. Bloom ignored this request. Bloom also redeemed coupons from the bonds at Manufacturers Hanover Bank in Manhattan. In September or October of 1984, Cornelius O'Reilly, an investigator for Manufacturers Hanover, contacted Bloom and told him that the bonds corresponding to the coupons cashed by Bloom at Manufacturers Hanover had been reported either lost or stolen. Bloom similarly did not return the money obtained from Manufacturers Hanover.
Aware that the bonds were lost and that redemption of their coupons would become increasingly difficult, Bloom decided to sell them. Bloom sent two samples of the bonds to his brother, Bobby Bloom, in Las Vegas, and directed him to arrange a sale. A "cooperating citizen" obtained the bonds and delivered them to the Las Vegas office of the FBI.
FBI Special Agent Rick Baken then contacted Bloom. Posing as an unscrupulous businessman, Baken placed a tape-recorded On April 4, 1985, Daley flew with his wife and the bonds to San Diego. When Daley arrived at the Hilton to consummate the sale, he was arrested by the FBI. Daley was advised of his constitutional rights and fingerprinted and photographed. Daley agreed to cooperate with the FBI and signed a written waiver of his rights. During the interrogation that followed, Daley admitted that: (i) he was Marvin Bloom's son-in-law; (ii) Bloom had given him the bonds eight or nine months earlier; (iii) Bloom had obtained the bonds from two other people; and (iv) when Bloom initially showed him the bonds, a receipt with the name Bernard Myer and the address of a liquor store was attached to them. According to Daley, the interrogation lasted for six hours and was followed by a brief stay in the Metropolitan Correctional Center in San Diego. Later on that evening, Daley was released from custody without being subjected to any formal charges. He was taken to the airport where his tickets were changed to a flight returning to New York on the morning of April 9, 1985. The FBI gave Daley $500 for expenses, and instructed him not to discuss the investigation with anyone.
telephone call to Bloom and claimed to be interested in purchasing illegally-obtained bonds. Bloom spoke with Baken briefly and then handed the telephone to Vincent Daley whom Bloom identified as "my partner." During the ensuing conversation Daley told Baken that the bonds were "not so hot and ... not so cold" and that "they're not stolen or anything, as far as I know[,] [t]hey're just lost." After several subsequent conversations Baken, Bloom and Daley agreed that Daley would travel with the bonds to San Diego, meet Baken at the San Diego Hilton, and sell Baken the bonds for thirty cents on the dollar
The day after the arrest, the FBI filed a complaint against, and obtained federal arrest warrants for, both Daley and Bloom. The complaint charged Daley and Bloom with conspiring to transport and transporting, in interstate commerce securities known to have been converted. Because these warrants were to be used only to ensure Daley's cooperation, the FBI's New York office was instructed to execute the warrants at its discretion. Neither Daley nor Bloom was ever arrested on those warrants. When Daley returned to New York on April 9, 1985, he and his wife were greeted by four FBI agents and Daley's father, Harry Daley. After permitting Vincent to talk privately with his father for five minutes, the agents took Vincent Daley into custody and interrogated both him and Bloom for approximately thirteen hours. Daley and Bloom were thereafter released.
Daley's attorney, Thomas Lilly, contacted Assistant United States Attorney Gay Hugo in San Diego. Hugo explained that the case was under investigation and that she expected an indictment to be issued shortly. Lilly called Hugo again on May 1, 1985. She informed Lilly that the investigation had been delayed because the FBI agent directing it had been involved in an automobile accident and was temporarily unable to return to work. Hugo did state, however, that she expected an indictment.
On February 10, 1987, a federal grand jury in the Eastern District of New York issued an indictment against Daley and Bloom on the charges enumerated in the complaint filed by the United States Attorney in San Diego in 1985. That indictment was subsequently superseded on June 16, 1987 by the indictment on which Daley was ultimately tried and which contained the same charges as the 1985 complaint. Daley moved to dismiss that indictment pursuant to the Speedy Trial Act, and the Fifth and Sixth Amendments, on the ground that the government had failed to provide him with a speedy trial. After a hearing, Judge Bramwell denied Daley's motion.
Daley's first trial ended in a hung jury. At his second trial, Daley testified that he was coerced to sign the waiver statement in San Diego in 1985. Request Number Nine of Daley's written requests for jury instructions included the following:
Evidence relating to any statement, or act or omission, claimed to have been made or done by a defendant outside of court, and after a crime has been committed The court's charge to the jury failed to include Daley's Request Number Nine. After the trial judge completed reading the charge to the jury, Daley offered a supplemental instruction similar to Request Number Nine. The court also rejected it. Approximately one-half hour later the government forwarded a proposed supplemental instruction on the issue. That proposal read as follows:
should always be considered with caution and weighed with great care; and all such evidence should be disregarded entirely, unless the evidence in the case convinces the jury beyond a reasonable doubt that the statement or act or omission was knowingly made or done.
The government has presented evidence that the defendant voluntarily waived his right to remain silent both in writing and orally prior to questioning by law enforcement officers. The defendant has contended that such waivers were not voluntarily made. It is up to you to determine whether the statements here were voluntarily made, and you should give the statements such weight as you feel they deserve under all the circumstances.
Daley objected to this charge on two grounds: (i) the language was incorrect; and (ii) the jury had been deliberating for thirty to forty-five minutes and disturbing them would prejudice his case. Consequently, no supplemental charge was given to the jury that day.
Prior to the resumption of deliberations the government offered an alternative supplemental instruction. This instruction came from Sand, Siffert, Loughlin & Reiss, Modern Federal Jury Instructions p 5.07 (1987), and stated:
There has been evidence that the defendant made certain statements in which the government claims he admitted certain facts charged in the indictment.
In deciding what weight to give the defendant's statements, you should first examine with great care whether each statement was made and whether, in fact, it was...
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