U.S. v. Vega

• Decision Date: 30 November 1978
• Docket Number: No. 1064,D,1064
• Citation: 589 F.2d 1147
• Parties: 3 Fed. R. Evid. Serv. 1267 UNITED STATES of America, Appellee, v. Sonia VEGA, Appellant. ocket 78-1038.
• Court: U.S. Court of Appeals — Second Circuit

Page 1147

589 F.2d 1147

3 Fed. R. Evid. Serv. 1267

UNITED STATES of America, Appellee, v. Sonia VEGA, Appellant.

No. 1064, Docket 78-1038.

United States Court of Appeals Second Circuit.

Argued June 15, 1978.

Decided Nov. 30, 1978.

Jonathan J. Silbermann, Legal Aid Society, New York City (Martin Erdmann, Legal Aid Society, New York City, of counsel), for appellant.

Larry J. Silverman, Asst. U. S. Atty. (David G. Trager, U. S. Atty., E. D. N. Y., Harvey M. Stone, Michael H. Soroka, Asst. U. S. Attys., Brooklyn, N. Y., of counsel), for appellee.

Before MULLIGAN, OAKES and GURFEIN, Circuit Judges.

MULLIGAN, Circuit Judge:

Sonia Vega appeals from a judgment of the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, convicting her of a substantive possession count, 21 U.S.C. § 841(a)(1), a conspiracy count, 18 U.S.C. § 371, and a violation of the Travel Act, 18 U.S.C § 1952(a)(3), by traveling in interstate commerce to promote the possession of heroin with intent to distribute. Appellant was sentenced to concurrent terms of five years' probation on each count under 18 U.S.C. § 5010, and she seeks reversal of the convictions. We affirm.

After receiving information from the proverbial "confidential source," agents of the Drug Enforcement Agency (DEA) had appellant, an eighteen-year-old woman, and her two male friends under surveillance from a Bronx address to LaGuardia Airport terminal where appellant and one of her companions (one Rentas-Fournier) were seen in possession of a yellow tote bag and a dark green suitcase, the other (Rivera) remaining apart from them for no apparent reason. All three took American Airlines Flight No. 377 for O'Hare Airport in Chicago; there they were followed from the airport to a gift shop. On their return to O'Hare on the evening of the same day, Rivera again remained somewhat separate from appellant and Rentas-Fournier. Needless to say, they were still under surveillance when they disembarked at Kennedy Airport in New York and proceeded to the baggage claim area. Rivera went to the taxi area, and appellant and Rentas-Fournier claimed the yellow tote bag and dark green suitcase. They were asked for identification by the DEA agents, and upon learning that Rentas- Fournier had none, an agent searched the suitcase with Rentas-Fournier's consent only to find one pound of heroin. After receiving proper Miranda advice, appellant waived her rights, corroborated the observations made by the DEA agents, and stated that she had known Rivera to be a trafficker in narcotics, had been asked to travel with him to Chicago for what she believed was a narcotics transaction, and had expected to get one hundred dollars for her participation. This evidence was developed at a suppression hearing and elaborated upon at trial, the agents testifying that appellant not only knew Rivera to be involved in narcotics trafficking but also had admitted that he "had been paying some of her bills."

Appellant did testify on her own behalf. She said that she was initially unaware of the purpose of the trip and became aware that it was for a narcotics transaction only when she witnessed the heroin purchase in Chicago. She then claimed that she cooperated with her accomplices only to insure her safe return home. She did not want to get involved and "wanted to go back home"; but because she had only $2.43 with her, a fact confirmed by one of the DEA agents, she accompanied Rentas-Fournier on the return trip. She denied that she had gone to Chicago to help the codefendants in their transaction or to transport the drugs to New York City. She also denied that Rivera paid some of her bills, explaining that she borrowed money from either Rivera or Rentas-Fournier, and denied saying that she expected to be paid for her trip. She complains on appeal of the following interrogation by the court, after her cross-examination by the prosecutor:

The Court: Tell me, when you got back to the airport you were back in here, in Kennedy?

The Witness: Yes.

The Court: At 1:35 in the morning; right?

The Witness: Yeah.

The Court: You were back home; right?

The Witness: Yeah.

The Court: And you were stopped by two gentlemen who said they were members of the Federal Drug Enforcement Agency; right?

The Witness: Yes.

The Court: Now, when they stopped you and asked you about the luggage, did you tell them right then and there that there was heroin in the bag?

The Witness: No.

The Court: All right.

No objection to this interrogation was made. The prosecution argued the point in summation, again without objection. In addition to complaining that the judge's interrogation was plain error, appellant also argues that she was entitled to daily copy of the suppression hearing transcript, that the judge's charge on her credibility was not fairly balanced, and that there was a failure of proof of violation of the Travel Act.

We quickly dispose of appellant's contention that the district court committed reversible error in refusing her request for the daily transcript of the suppression hearing. The value of the transcript to the appellant was minimal, and the alternative of informally obtaining the material from the court reporter was evidently readily available. See Britt v. North Carolina,404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). Although the trial court mistakenly assumed that defense counsel had no right to order the transcript unless the prosecution ordered it, we fail to see how the denial of the transcript harmed appellant. See United States v. Jonas, 540 F.2d 566, 573 (7th Cir. 1976). The cases upon which appellant relies, e. g., United States v. Acosta, 495 F.2d 60 (10th Cir. 1974), all involve requests made prior to a second trial for the transcript of the first one.

Appellant also urges that the district judge's interrogation, which led to her admission that she was silent when she first encountered the DEA agents at Kennedy Airport, violated the appellant's Fifth Amendment right to remain silent. Reversal of the judgment is required, according to appellant, by the Supreme Court holdings in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), where the Supreme Court labelled as error the prosecution's comment on the defendants' silence during a custodial interrogation after the defendants had been given Miranda warnings. Hale was determined on the supervisory power of the Supreme Court over the lower federal courts. Doyle, however, was bottomed on the Due Process Clause of the Fourteenth Amendment.

In Doyle, defendants in a state court criminal trial, after arrest and after having been given Miranda warnings, took the stand and gave an exculpatory story that had not previously been given to the police or the prosecutor. Over timely objection of counsel, they were then queried on cross-examination as to why they had not given the arresting officer their exculpatory explanations. In reversing their state court convictions the Court stated:

Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.

Id. at 618, 96 S.Ct. at 2245. The holding of the Court is explicit. "We hold that the use for impeachment purposes of petitioner's silence At the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." Id. at 619, 96 S.Ct. at 2245 (emphasis added). Numerous cases in the wake of Doyle have recognized that crucial to the rulings in that case and in United States v. Hale, supra, was that an arrestee is in official custody and has been given the "implicit representations in the Miranda warnings that a defendant will not be penalized for his decision to remain silent." United States v. Shields, 571 F.2d 1115, 1118 (9th Cir. 1978); accord, e. g., United States v. Mireles, 570 F.2d 1287, 1291-92 (5th Cir. 1978); Morgan v. Hall, 569 F.2d 1161, 1165-66 (1st Cir. 1978), cert. denied, 437 U.S. 910, 98 S.Ct. 3103, 57 L.Ed.2d 1142 (U.S. June 20, 1978); United States v. Johnson, 558 F.2d 1225, 1228-30 (5th Cir. 1977). Indeed, Justice Stevens, dissenting in Doyle, explicitly noted that in a case such as that at bar where Miranda warnings had not been given "nothing in the Court's opinion suggests that there would be any unfairness in using petitioners' prior inconsistent silence for impeachment purposes." 426 U.S. at 625-26, 96 S.Ct. at 2248.

It is clear that Doyle was based not on the Fifth Amendment right against self-incrimination but rather on the Due Process Clause of the Fourteenth Amendment without mention of self-incrimination. Id. at 618, 96 S.Ct. 2240. The Court found a fundamental unfairness in the prosecutor's use of a defendant's silence after the implicit assurance of the Miranda warnings that silence will carry no penalty. Here, the appellant received no Miranda warnings and indeed was entitled to none since she had not been placed in custody. ¹ Thus, both factors which the Supreme Court recited in Hale and Doyle as giving rise to constitutional difficulties that the defendant was in custody and had been given Miranda warnings are absent in this case.

It may be argued that even absent custodial interrogation Vega was naturally reluctant to speak before a federal agent in the presence of her companion, Rentas-Fournier. Experience has shown that cooperating witnesses are, to say the least, not looked upon with favor by those engaged in the drug trafficking business. Whether this circumstance is sufficient to raise a constitutional issue, however, is a question we need not address here since the circumstances in this...