U.S. v. Fera

• Citation: 616 F.2d 590
• Decision Date: 28 February 1980
• Docket Number: No. 79-1268,79-1268
• Parties: UNITED STATES of America, Appellee, v. Arthur FERA, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 590

616 F.2d 590

UNITED STATES of America, Appellee, v. Arthur FERA, Defendant, Appellant.

No. 79-1268.

United States Court of Appeals First Circuit.

Argued Nov. 5, 1979.

Decided Feb. 28, 1980.

Richard Heller, Boston, Mass., by appointment of the court, for appellant.

James E. O'Neil, Asst. U. S. Atty., Providence, R. I., with whom Paul F. Murray, U. S. Atty., Providence, R. I., was on brief, for appellee.

Before CAMPBELL and BOWNES, Circuit Judges, and CLARKE, ^* District Judge.

J. CALVITT CLARKE, District Judge.

This is an appeal by Arthur Fera of his conviction by a jury for dealing in counterfeit Federal currency, in violation of 18 U.S.C. § 473. ¹ He contends that his conviction is defective as a result of several errors in the trial. We affirm the judgment.

The Government's case was based largely upon the testimony of Michael Johnston, Frank Searle and Stephen Petro, agents of the United States Secret Service. According to the evidence presented by the Government through these witnesses, Agent Johnston first became acquainted with Fera while conducting an undercover investigation on August 31, 1978, when he was introduced to him by Robert Colannino, a Government informant. Subsequently, Johnston discussed with Fera the possibility of purchasing counterfeit currency, and on September 5, 1978, Johnston phoned Fera to arrange for such a purchase. The two men met that evening at the Cranston Hilton Hotel in Cranston, Rhode Island, to finalize the deal. Fera agreed to supply Johnston with $20,000 in counterfeit $50 notes in exchange for $1000 in genuine currency, plus a percentage of the profits from any resale of the currency by Johnston.

Later that evening, Fera and Johnston again met at the Cranston Hilton to consummate the transaction. At first Fera suggested that Johnston pick up the notes at a locker in a train station. However, when Johnston refused to follow this procedure, Fera departed and returned to the hotel with a bag containing $20,000 in counterfeit currency which he delivered to Johnston. At a prearranged signal, other agents, including Agents Searle and Petro, moved in and arrested Fera.

I.

The first alleged error urged by Fera is the trial court's failure to instruct the jury, as directed by 18 U.S.C. § 3501(a), ² to give such weight to statements made by Fera after his arrest as the jury felt they deserved under all the circumstances. These statements were presented to the jury through the testimony of Agents Searle and Petro.

Following his arrest, Fera was taken by Agents Petro and Searle to the offices of the Secret Service in downtown Providence. In response to the agents' questions, Fera gave three conflicting accounts of his acquisition of the counterfeit currency. He first told the agents that he found it. Fera then changed his story and told them that he was given the currency by a person whom he did not know. Again, Fera changed his story in response to further questions, and stated that he bought the currency for $2000 and picked it up from a locker in Logan Airport. During this post-arrest questioning, Fera also admitted that he had additional counterfeit currency at his home in Cranston, Rhode Island, and offered to take the agents to his residence and give this currency to them.

Prior to trial, the district court held a hearing on Fera's motion to suppress these post-arrest statements. On the basis of the evidence presented at that hearing, including the testimony of the defendant himself, the district court found that these statements were made voluntarily and without undue coercion by the Government's agents. Fera does not challenge this finding on appeal.

Before permitting the jury to hear testimony regarding these statements, the district court held a second hearing out of the presence of the jury, as required by section 3501(a), in which it again determined that these statements were made voluntarily. Again, the defendant does not now challenge this finding. The district court then permitted the jury to hear testimony regarding Fera's post-arrest statements. At the same time, the court provided Fera with an adequate opportunity to cross-examine the Government's witnesses concerning the circumstances surrounding these statements and to present further evidence to show that they were made involuntarily.

In the evidence presented to the jury, the Government's agents testified that Fera was made aware of his constitutional rights, including his rights to remain silent and to obtain counsel, at the time of his arrest and on at least three other occasions during the evening. Soon after he was arrested, Fera signed a form acknowledging that he had been advised of his rights and that he understood them. ³ However, without further explanation, Fera refused to sign another portion of the form which stated:

WAIVER

I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or force of any kind has been used against me. I hereby voluntarily and intentionally waive my rights and I am willing to make a statement and answer questions.

However, at no time did Fera indicate that he wished to contact an attorney. On the contrary, the testimony revealed that Agent Searle specifically asked Fera if he wished to contact an attorney and that Fera declined this invitation. Nor did Fera request to use the telephone which was on the desk in front of him throughout the questioning.

In response to questions by the appellant's counsel, Agent Petro acknowledged that he once told Fera that any cooperation would be reported to the United States Attorney. However, the agents denied that they ever threatened Fera in any way, and testified that he appeared willing to cooperate with them at all times. Fera testified at the suppression hearing that the agents threatened to send him to prison that night if he called an attorney, and that they otherwise intimidated him. The agents specifically denied these claims. Fera did not take the witness stand during the trial.

Regarding the search of Fera's home, the evidence presented to the jury was that Fera offered to take the agents to his home to recover the additional counterfeit currency secreted there. Prior to the search of his home, Fera signed a form authorizing this search and waiving his right to require a search warrant. ⁴ There was no evidence that the appellant's consent to the search of his home was obtained improperly, or that this search was conducted in anything other than a subdued and cooperative manner.

On appeal, Fera does not directly challenge the voluntariness of his statements, nor the district court's findings on this issue. Instead, he argues that the district court's failure to instruct the jury to give these statements "whatever weight they considered appropriate" was reversible error. We cannot agree with this contention.

This Court recently considered this issue in United States v. Cowden, 545 F.2d 257 (1st Cir. 1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977). In that case, we held that section 3501(a) does not require "a ritual instruction where no identifiable issue of voluntariness" is raised by the evidence presented to the jury. Id. at 267. Only if relevant evidence sufficient to raise a genuine factual issue concerning the voluntariness of such statements is presented by the defendant, whether through his own or the Government's witnesses, is the trial court obligated to instruct the jury concerning the weight to be accorded to the defendant's statements.

The evidence presented to the jury failed to raise a serious factual issue concerning the voluntariness of Fera's post-arrest statements. The issue was not implicated by evidence of Agent Petro's statement to Fera that any cooperation would be relayed to the United States Attorney. A promise merely to bring any cooperation on the part of the defendant to the prosecuting attorney's attention does not constitute a coercive promise sufficient to render any subsequent statements involuntary and inadmissible. See United States v. Curtis, 562 F.2d 1153, 1154 (9th Cir. 1977), cert. denied, 439 U.S. 910, 99 S.Ct. 279, 58 L.Ed.2d 256 (1978); United States v. Springer, 460 F.2d 1344, 1347 (7th Cir. 1972), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972); United States v. Frazier, 434 F.2d 994 (5th Cir. 1970).

Moreover, under the circumstances presented at trial, the appellant's refusal to sign a formal waiver of his right to counsel was not sufficient to raise a serious question concerning the voluntariness of his subsequent statements. Out of an abundance of caution, as the record reveals, the agents repeatedly advised Fera of his rights to remain silent and to obtain counsel. His refusal to sign a formal waiver was accompanied by no explanation. Fera orally indicated his willingness to cooperate and declined the agents' invitation to call an attorney. At no time did Fera object to the agents' questions or seek to terminate the interrogation. ⁵

The evidence presented to the jury overwhelmingly pointed to the voluntariness of Fera's post-arrest statements. He exhibited no reluctance to cooperate with the Government's agents other than his unexplained refusal to sign the form. His refusal to sign the formal waiver appears to be nothing more than a calculated strategy to gain whatever benefits which may have resulted from cooperation while not foreclosing any option to terminate this cooperation at a later time should it prove convenient. While the appellant was free to use his rights in this manner, his refusal to sign the formal waiver form does not undermine the otherwise overwhelming evidence of the voluntariness of his statements. See United States v. Davis, 532 F.2d 22 (7th Cir. 1976); United States v. Gardner, 516 F.2d 334 (7th Cir. 1975), cert. denied, 423 U.S. 861, 96 S.Ct. 118, 46 L.Ed.2d 89 (1975); United States v. McDaniel, 463...