U.S. v. Matsushita

• Decision Date: 24 June 1986
• Docket Number: No. 725,D,725
• Citation: 794 F.2d 46
• Parties: UNITED STATES of America, Appellee, v. Takeo MATSUSHITA, a/k/a "Scott Cunningham," Defendant-Appellant. ocket 85-1390.
• Court: U.S. Court of Appeals — Second Circuit

Page 46

794 F.2d 46

UNITED STATES of America, Appellee, v. Takeo MATSUSHITA, a/k/a "Scott Cunningham," Defendant-Appellant.

No. 725, Docket 85-1390.

United States Court of Appeals Second Circuit.

Argued Jan. 28, 1986.

Decided June 24, 1986.

Monroe H. Freedman, Hempstead, N.Y. (Myron Beldock, Beldock Levine & Hoffman, New York City, of counsel), for defendant-appellant.

Franklin H. Stone, Asst. U.S. Atty., S.D. N.Y. (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Kenneth Roth, Asst. U.S. Atty., of counsel), for appellee.

Before OAKES, WINTER and PRATT, Circuit Judges.

WINTER, Circuit Judge:

Takeo Matsushita appeals from convictions on two counts of possession of cocaine with intent to distribute, 21 U.S.C. Sec. 841(a)(1), (b)(1)(A) (1982), one count of carrying a firearm during commission of a felony, 18 U.S.C. Sec. 924(c)(2) (1982), and one count of impersonating a federal officer, 18 U.S.C. Sec. 912 (1982). He claims, inter alia, that the district court erred in denying motions to suppress certain post-arrest statements and physical evidence, that his right to a speedy trial was violated, and that he was deprived of his fifth and sixth amendment rights by the district court's refusal to allow him to assume his own representation late in the trial. The suppression questions involve ambiguities in the district court's findings, and we remand for clarification. We reject appellant's other claims.

BACKGROUND

In July, 1983, the Marriott Hotel in Miami, Florida, began receiving phone calls from a person identifying himself as "Inspector Scott Cunningham" of the United States Secret Service. The caller inquired about a metal suitcase in a Marriott storage room and threatened a federal investigation unless the suitcase was turned over to him. Matsushita had checked the suitcase into the hotel's storage room in November, 1982. Hotel officials became suspicious about the "Cunningham" calls, and alerted federal authorities. The investigators discovered that the Secret Service did not employ an "Inspector Scott Cunningham." With the hotel's consent, the Secret Service recorded two subsequent calls from Cunningham. They also traced a number given by the caller to a New York City answering service and discovered a message for a "James Lee" to call a Mercedes dealership. The dealership was told to notify the authorities if "James Lee" appeared.

In early August, Matsushita, who was known to the dealership as "James Lee," arrived to pick up his car, which had been dropped off for service a few days earlier. The Secret Service was phoned, and several agents descended upon the dealership. After some initial questioning in which Matsushita identified himself as "Takeo Matsushita" and denied being "James Lee," he was taken into custody and brought to Secret Service headquarters.

At headquarters, an agent familiar with the "Scott Cunningham" calls recognized Matsushita's voice as that of the person making those calls. Matsushita was placed under formal arrest on the impersonation charge and given Miranda warnings. He admitted to having made the "Cunningham" calls. A search of his person incident to the arrest revealed a small quantity of cocaine and several pieces of false identification. Also, a loaded handgun was found in Matsushita's car during an inventory search. Matsushita admitted possession of these items. Later, after obtaining a search warrant, agents searched Matsushita's apartment and found approximately four kilograms of high-purity cocaine, $7,800 in cash, sixteen guns, and assorted narcotics paraphernalia. They also found a recording of the "Cunningham" calls and additional pieces of false identification.

Prior to trial, Matsushita moved to suppress all statements made by him, the cocaine found on his person at the time of arrest, the gun found in his car, and the evidence seized during the search of his apartment. Judge Kram, who handled the pretrial proceedings, (Judge Cannella presided The pretrial period was marked by long delays and by several changes in defendant's counsel. Matsushita's trial did not begin until June 10, 1985, more than twenty-two months after his arrest. During this time Matsushita was represented by at least five and perhaps six different attorneys, not including present appellate counsel. The changes of attorney caused some delay, as defendant needed time to find a new attorney each time he dismissed one. A court-ordered competency exam also delayed defendant's trial for a substantial period, as did the flurries of pretrial motions filed by defendant.

at the trial), found that Matsushita had been in custody from the time of his initial seizure at the Mercedes dealership. She thus suppressed all statements made by Matsushita before he was given his Miranda warnings, which took place at Secret Service headquarters following his formal arrest. She refused to suppress the items found on Matsushita's person, however, finding that they were products of a valid search incident to arrest, untainted by the inadmissible pre-Miranda statements. Finally, she found that the gun taken from the car and the post-Miranda statements were also admissible, as well as the items from his apartment.

The government rested its case on June 12. The next morning, the defense sought to call a witness, but the court excluded his testimony as irrelevant. Defense counsel stated that he planned to call no more witnesses. The court discussed with counsel the requests to charge, and, after the jury had been brought back in, the defense formally rested. At that point, Matsushita sought to exercise his right to represent himself. The court denied this request as untimely. Matsushita persisted in his objections, and the dispute was adjourned to the robing room. Further discussions ensued, and the defendant returned to the courtroom under instructions not to interrupt again in the jury's presence. Shortly after the prosecutor began her summation, however, Matsushita interrupted and demanded that he be allowed to present witnesses. He was found in contempt and quieted, and the summation continued. The jury convicted on all counts.

Matsushita now appeals. He claims, inter alia, that: (i) the court erred in refusing to suppress certain physical evidence, (ii) the court erred in refusing to suppress his post-Miranda statements; (iii) the lengthy pretrial delay violated his right to a speedy trial; and (iv) his fifth and sixth amendment rights were violated by the court's refusal of his request to testify and to present witnesses in his behalf. We address these issues seriatim.

DISCUSSION

1. Probable Cause to Arrest

Matsushita argues that there was no probable cause to arrest him when he was taken into custody at the Mercedes dealership, and that all evidence garnered thereafter (voice identification, cocaine, and gun) should have been suppressed as the fruits of an illegal detention. He bases his argument primarily on Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985). In Hayes, police officers visited a suspect in a recent series of rapes at his home and asked him to accompany them to the station for fingerprinting. When the suspect expressed his reluctance, one officer threatened him with arrest. The suspect then agreed to accompany the officers. Id. at 1645. The Court rejected the argument that the police conduct was permissible under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (brief investigative stop permitted if based on reasonable suspicion). The Court held that the police may not, "without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained ... for investigative purposes." 105 S.Ct. at 1647.

Matsushita claims that there was no probable cause to arrest him at the Mercedes dealership, and that the identification of his voice is therefore analogous to the fingerprints in Hayes and must be suppressed. Without the voice ID, he argues Judge Kram's opinion is somewhat ambiguous as to whether there was probable cause for the initial seizure at the dealership. At the suppression hearing, the government took the position that Matsushita had voluntarily gone with the agents for questioning, and that the voice ID had been the piece of evidence that provided probable cause. Judge Kram found, however, that Matsushita was in custody from the time the agents first encountered him at the dealership. She suppressed only his pre-Miranda statements, however, because she found that, even without those statements, "probable cause ... did exist to arrest [Matsushita] at the time he was arrested on August 1, 1983." Appellant claims that this statement refers to the formal arrest at headquarters, and that Judge Kram necessarily found no probable cause for the initial seizure. The government, on the other hand, conceding that the opinion is "somewhat ambiguous," argues that it is at worst "overtly silent" as to the initial seizure. Brief of Appellee at 29. It argues that we may infer a finding of probable cause from the district court's refusal to order broader suppression, despite Matsushita's explicit requests for such relief. Alternatively, it argues that regardless of the district court opinion, the seizure was fully supported by probable cause.

                the formal arrest at Secret Service headquarters was not supported by probable cause and was thus also invalid.  Because the searches of his person and his car were not incident to a lawful arrest, he claims that the fruits of those searches, i.e., the cocaine and the gun, must also be suppressed.   See Wong Sun v. United States, 371 U.S. 471 (1963) (setting out "fruit of the poison tree" doctrine)
                

We believe that the appropriate course of action is to remand to Judge Kram for clarification and more explicit findings on the issue of probable cause at the time Matsushita was detained at the dealership. Although she...