U.S. v. Martindale

• Decision Date: 21 May 1986
• Docket Number: No. 84-5329,84-5329
• Citation: U.S. v. Martindale, 790 F.2d 1129 (4th Cir. 1986)
• Parties: UNITED STATES of America, Appellee, v. Walter Reed MARTINDALE, III, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1129

790 F.2d 1129

UNITED STATES of America, Appellee, v.Walter Reed MARTINDALE, III, Appellant.

No. 84-5329.

United States Court of Appeals Fourth Circuit.

Argued Oct. 11, 1985.

Decided May 21, 1986.

Blair Howard(John Frank Leino, Howard & Howard, P.C., Alexandria, Va., on brief), for appellant.

Justin Williams, Asst. U.S. Atty. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., David B. Smith, U.S. Dept. of Justice, Washington, D.C., on brief), for appellee.

Before RUSSELL, PHILLIPS and MURNAGHAN, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

This is a bizarre case of mystery and high Mideastern intrigue reminiscent of a James Bond novel.We sketch the facts of the story only to the extent that they are necessary to an understanding of the issues on appeal.

The central figure in the case and the defendant on appeal is a former officer in the State Department.He served apparently in an intelligence capacity of some importance in both the Middle East and Vietnam.During this time, he enjoyed diplomatic status and traveled under a diplomatic passport.A few years before the incidents which led to his prosecution, he either resigned or was terminated from government service.According to his testimony, he then engaged in private trading, being associated with a Middle Eastern group in some nebulous or indefinite ventures never entirely disclosed.In connection with his employment with this group, he undertook a careful and extensive surveillance of a member of a prominent Saudi Arabian family, the Al-Fassi's, who resided on the outskirts of London.The defendant gave a number of reasons, none free of doubt, for the surveillance.He suggested at his English interrogation that his group was interested in inducing Mr. Al-Fassi to become a co-investor.He had early on, however, confided to a retired Government intelligence agent, Goodman, with whom he had worked while employed by the Government, that he had been asked by Sheik Ibrahim Al-Rawaf to arrange an assassination in London.He indicated that a "Prince Naif" was the financial backer of the enterprise.He requested Goodman to review the planning for what was described felicitously as "this operation."Goodman actually visited London with the defendant for this purpose.While there, Goodman contacted a Vietnamese Phuc, whom both Goodman and the defendant had known in Vietnam.The three met and the defendant indicated to Phuc that he(the defendant) might have some work for him and other Vietnamese in the area.

Sometime later, on returning to Alexandria, Virginia, the defendant told Goodman to ask Brookshire, a retired Army officer who had served with the two of them in Vietnam, to secure for him (the defendant) an Uzi semi-automatic or automatic gun of Israeli manufacture.The defendant explained he sought this gun for a foreign national who would be taking it permanently out of the United States.Brookshire secured the Uzi gun as requested and, with the assistance of another mutual friend, delivered it to the defendant at a meeting in Petersburg, Virginia.At this time, the defendant's story to Goodman was that the gun was intended for a bodyguard of Al-Rawaf.The defendant later telephoned Goodman from London, told him he had "the items," which Goodman understood to refer to the gun, and secured from him (Goodman) the name of the Vietnamese individual whom they previously had seen in London.The defendant proceeded to communicate with Phuc and sought to engage him in his surveillance of Al-Fassi.The defendant allegedly used the word "kidnap" in connection with the intended surveillance, though the defendant denies Phuc's testimony on the use of the word "kidnap."Phuc did not initially understand the word "kidnap" according to his testimony but, having become suspicious of the defendant and his project, he consulted a Vietnamese friend who told him the meaning of "kidnap."Concerned, Phuc determined to consult Scotland Yard.He was instructed by Scotland Yard to maintain contact with the defendant.

On his next visit to Phuc's residence, the defendant brought with him an attache box, which he explained to Phuc contained a radio to be given to a friend in the Mid-East and which he wished to leave with Phuc for a couple of weeks.Phuc accepted the box but, as soon as the defendant left, he called Scotland Yard which took possession of the attache box, opened it and discovered both the Uzi gun, a .38 calibre revolver, and ammunition for both weapons.At this point, Scotland Yard determined to break the case.

Officers of Scotland Yard took the defendant into custody and, with defendant's consent and after giving him the appropriate warnings under British law, interrogated him at some length.The defendant made many statements during this interrogation.He was later formally charged and plead guilty to firearms possession.After being held for another thirty days, he was released and allowed to board a plane to the United States without any passports (they having been seized) but with authority to travel granted by the United States Embassy in London.

On arrival in the United States, the defendant was interviewed by the Customs authorities and about a week later he was interviewed by Special Agent Pederson of the Bureau of Alcohol, Tobacco and Firearms.This was followed by the indictment of defendant on nine counts.One count charged a conspiracy to violate the Gun Control Act of 1968; two counts charged the defendant with shipping a firearm in interstate commerce and in foreign commerce with intent to commit a felony; one count charged knowing receipt of an Uzi rifle in Virginia after having caused the rifle to be purchased outside Virginia; one count charged knowing delivery of a firearm to a common carrier for shipment in foreign commerce without written notice to the carrier; two counts charged unlawful use of a diplomatic passport; and, finally, two counts charged impersonating a State Department employee.After a trial he was convicted of seven of the counts and acquitted of two.Subsequent to sentence, he appealed the judgment of conviction.

The defendant's principal objections on appeal are directed at the admission in evidence of (1) the personally signed transcript of his interviews by British officers at Scotland Yard in London, (2) of his interview with the Customs officers when he returned to the United States after his British prosecution, and (3) of his interview at his own office by Officer Pederson.We shall consider in their order these several objections first.

In their interrogation of the defendant, the British officers were engaged in the lawful pursuit of a separate and valid investigation into activities involving a violation of British law and conducted in compliance with British law.Of this there seems to be no dispute.Before the interrogations began, the British officers gave the customary British caution, advising the defendant that "he needn't say anything unless he wished to do so, but what he did say would be taken down in writing and may be given in evidence."There was no requirement on the part of the British officers of compliance with the rule either in Miranda v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966), or in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246(1964), and any admissions made by the defendant in the interviews by the British officers were admissible absent proof of duress or of a wilful attempt of American authorities to evade the strictures of Miranda or Massiah by employing the foreign authorities.United States v. Bagaric, 706 F.2d 42, 69(2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 134, 78 L.Ed.2d 128(1983).The reason for such rule was stated in United States v. Chavarria, 443 F.2d 904, 905(9th Cir.1971):

Miranda was intended as a deterrent to unlawful police interrogations.When the interrogation is by the authorities of a foreign jurisdiction, the exclusionary rule has little or no effect upon the conduct of foreign police.Therefore, so long as the trustworthiness of the confession satisfies legal standards, the fact that the defendant was not given Miranda warnings before questioning by foreign police will not, by itself, render his confession inadmissible.

The district judge held an evidentiary hearing on the issue of duress in connection with the British interviews and, after such hearing, found no duress.That finding of the district judge is reversible only for clear error.United States v. Dodier, 630 F.2d 232, 236(4th Cir.1980).The ruling of the district judge against duress was not clearly erroneous.It must be noted that the defendant is a well-educated, sophisticated individual with wide experience in the intelligence field.There is no reason to assume he was unaware either of his rights or of his surroundings.He had undoubtedly participated in investigations himself and suffered under no handicaps of inexperience, immaturity, or impaired competency.When asked if he would talk to the British officers, he had readily agreed.The interrogation was cordial throughout.Further, it must be remembered that the entire interrogation was typed and the defendant was given the opportunity to read it and verify the accuracy of the transcript.He did that and he signified his agreement with all the statements in the transcript by signing the transcript without any reservations.

The only fact that the defendant adduces in support of his argument of duress is that during the interrogation he was denied the right to use a telephone.One of the British officers explained the reason for this denial and his explanation was accepted by the district judge as reasonable and credible.The denial of the use of a telephone was clearly not intended by the British officers to coerce the defendant.The facts being developed in the investigation indicated an extensive plot either to murder or kidnap an individual.Manifestly there were...