U.S. v. Micieli

• Decision Date: 26 April 1979
• Docket Number: No. 78-5278,78-5278
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Seymour MICIELI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 102

594 F.2d 102

UNITED STATES of America, Plaintiff-Appellee, v. Charles Seymour MICIELI, Defendant-Appellant.

No. 78-5278.

United States Court of Appeals, Fifth Circuit.

April 26, 1979.

Tanya M. Plaut, H. Franklin Robbins, Jr., Orlando, Fla., for defendant-appellant.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Kendell W. Wherry, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before BROWN, Chief Judge, TUTTLE and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Charles Seymour Micieli appeals from the judgment entered on his jury conviction for engaging in the business of dealing in firearms without being properly licensed. 18 U.S.C.A. § 922(a)(1). His appellate efforts focus on three separate aspects of the law of confessions: (1) whether statements he made without Miranda ¹ warnings during a pre-grand jury appearance interview were properly admitted; (2) whether he validly waived his rights prior to making post-arrest statements; (3) whether there was sufficient evidence to corroborate his admissions and to sustain the jury's guilty verdict. Since we deem the admissions, which we conclude were properly admitted, together with the remaining evidence sufficient to sustain the jury's guilty verdict, we affirm.

Of course, we view the evidence in the light most favorable to the Government, allowing all reasonable inferences which sustain the jury's verdict. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). However, apart from his admissions, there is only incidental evidence of Micieli's dealings in firearms. This is significant to our consideration of each issue raised.

In November and December of 1975, Micieli was unemployed and living in Indialantic, Brevard County, Florida. During this period he purchased ten handguns at the Oaks Trading Post Gun Shop in Rockledge, Brevard County, Florida. Apart from the testimony of Government agents based on Micieli's admissions that he purchased the handguns for another person to whom he resold them at a $25 per gun profit, there was little other evidence of the dealing in firearms charge. The manager of the Oaks Trading Post Gun Shop testified that Micieli had purchased the ten handguns during the period. On one occasion he was seen in the shop along with Frank Chierco, who was allegedly under investigation by agents of the Bureau of Alcohol, Tobacco and Firearms for his possible connection with a homicide in New Jersey that had been committed with a handgun purchased in Florida which the agents had traced to Chierco. The Government introduced a Bureau of Alcohol, Tobacco and Firearms Form 4473, Firearms Transaction Record, for each of the ten handguns bearing Micieli's signature, which was verified by a handwriting expert. A certificate was also introduced from the United States Department of the Treasury which established that Micieli was not a licensed firearms dealer during the critical period. In summary, evidence independent of Micieli's admissions proved only that he was not a federally licensed firearms dealer and that he had purchased the ten handguns. Thus, the only evidence that Micieli sold the handguns, an element of the crime for which he was convicted, was provided by his own admissions to the Government agents. Therefore, the initial question of the admissibility of these admissions becomes critical to our review of his conviction.

The events leading up to Micieli's pre-grand jury appearance admission in April of 1977 began nearly a year before. In February of 1976, Micieli was subpoenaed to appear to testify before the federal grand jury in the Middle District of Florida. This proved to be the first of several federal grand jury subpoenas with which Micieli was served in Florida and New Jersey. In response to this first subpoena, Micieli appeared and invoked his Fifth Amendment privilege against self-incrimination.

A few weeks later, an agent of the Bureau of Alcohol, Tobacco and Firearms went to Micieli's home in Florida. The agent asked him if he wished to make a statement, suggesting that "it would be easier for him if he talked." When Micieli declined to make a statement, the agent responded that he could become an accomplice in a matter then pending before the grand jury, if he did not cooperate. In June of 1976, Micieli was again served with a subpoena compelling his appearance before the federal grand jury in the Middle District of Florida. The subpoena was served by the same agent who had earlier visited his home and solicited his cooperation. On June 23, 1976, Micieli made his second appearance before the federal grand jury and again invoked his Fifth Amendment privilege against self-incrimination. The Assistant United States Attorney conducting the grand jury investigation applied to the District Court for the Middle District of Florida for an order compelling Micieli to testify. This application was denied.

In July of 1976, Micieli moved to New York State. During April of 1977, he was once again served with a subpoena to appear, this time before a federal grand jury in Newark, New Jersey. On April 28, 1977, Micieli responded to the third federal grand jury subpoena. On this occasion, the pre-grand jury appearance interview took place at which Micieli made a damaging admission. This interview provides the basis for Micieli's first argument for reversal of his conviction.

If this pre-grand jury appearance interview was a custodial interrogation, then Miranda warnings were required and the failure to give the warnings rendered Micieli's admission inadmissible. On this theory, Micieli unsuccessfully moved to suppress his admission. This Court has followed a case-by-case approach in determining whether a custodial interrogation occurred. United States v. Montos, 421 F.2d 215 (5th Cir.), Cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970); Agius v. United States, 413 F.2d 915 (5th Cir. 1969). Four factors have been identified as significant to the determination: (1) a probable cause to arrest; (2) the subjective intent of the interrogators to hold the suspect; (3) the subjective belief of the suspect concerning the status of his freedom; and (4) whether the investigation has focused on the suspect. United States v. Nash, 563 F.2d 1166 (5th Cir. 1977); United States v. Carollo, 507 F.2d 50 (5th Cir.), Cert. denied, 423 U.S. 874, 96 S.Ct. 143, 46 L.Ed.2d 105 (1975). Micieli argues that factors (3) and (4) are present. The Government counters that none of the four factors are present since the subjective intent of the agents was to obtain information from Micieli about Frank Chierco, and since the focus of the investigation was on Chierco and his activities, not on Micieli.

Based on findings made after a hearing, the District Court denied Micieli's motion to suppress his admissions made during the pre-grand jury appearance interview. Conflicts in the testimony at the suppression hearing were reconciled to provide the following account of what took place.

As Micieli could not be promptly called before the grand jury, he was asked if he would be willing to talk with some agents from the Bureau of Alcohol, Tobacco and Firearms. He was advised that he had been subpoenaed to testify concerning the transportation of guns from Florida to New Jersey and about his association with Frank Chierco. The Assistant United States Attorney told Micieli, prior to his talking with the agents, that he did not have to talk with the agents but, if he did, that he should tell the truth. No one ever told Micieli that nothing he said would be used against him, despite his assertion to the contrary at the suppression hearing. Micieli agreed to speak with the agents. No Miranda warnings were given. Micieli and three agents talked about one and one-quarter hours in a small room with the door closed. The Assistant United States Attorney went in and out asking questions from time to time during the interview. Micieli did not refuse to answer any questions. One of the agents testified that the door was not locked, that the setting was congenial and that Micieli was free to leave the room. During the interview, Micieli admitted that he purchased ten handguns in Florida and sold them to a person named John for $25 more than the purchase price, and that a person by the name of Frank Chierco was with him when he made some of the purchases. He also told the agents that he was not a federally licensed firearms dealer. After the interview ended, when Micieli was brought on before the grand jury, he was given his Miranda warnings. After a few questions he asked for an adjournment so as to obtain counsel, and his request was granted.

Applying the four factors of Nash and Carollo to the instant case, we agree with the District Court's characterization of the pre-grand jury appearance interview as non-custodial. Prior to the interview the agents did not have probable cause to arrest Micieli. The subjective intent of the agents was to obtain information about Frank Chierco and interstate gun transportation. Micieli was not the target of the investigation. He was free to leave the room and there was no indication of any overreaching on the part of the agents. There was no objective, reasonable ground for him subjectively to believe that he was in custody. See Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); United States v. Nash, 563 F.2d 1166 (5th Cir. 1977). Cf. United States v. Robertson, 582 F.2d 1356 (5th Cir. 1978) (En banc ). He had invoked his privilege against self-incrimination on several prior occasions and again immediately after the interview. In each of these occasions he had been free to walk away, and he did. Even at the hearing on the suppression motion, he testified only that he was not sure if he could have left, which is far short of a belief that he was in custody. Finally, the focus of...