United States v. Abigando, 29492.

• Decision Date: 11 March 1971
• Docket Number: No. 29492.,29492.
• Citation: 439 F.2d 827
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Victor ABIGANDO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

439 F.2d 827 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Victor ABIGANDO, Defendant-Appellant.

No. 29492.

United States Court of Appeals, Fifth Circuit.

March 11, 1971.

Louis F. Ray, Jr., of Holsberry, Emmanuel, Sheppard & Mitchell, Pensacola, Fla., for defendant-appellant.

William Stafford, U. S. Atty., Clinton Ashmore, C. W. Eggart, Jr., Asst. U. S. Attys., for plaintiff-appellee.

Before RIVES and SIMPSON, Circuit Judges, and NICHOLS, JR.,^* Judge, Court of Claims.

RIVES, Circuit Judge:

Abigando appeals from his conviction on a two-count indictment charging separately the interstate transportation of two stolen motor vehicles in violation of 18 U.S.C. § 2312. He was sentenced to five years' imprisonment on each count, the sentences to run concurrently. While mindful of the "concurrent sentence doctrine" as enunciated in Hirabayshi v. United States, 1943, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, which would allow us to omit consideration of one of Abigando's convictions if the other is valid, this opinion will deal with both convictions. Benton v. Maryland, 1969, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, held that the "concurrent sentence doctrine" is not a jurisdictional bar to consideration of challenges to multiple convictions where concurrent sentences are imposed. The doctrine is one of federal appellate court convenience, and the appellate court may decide as a matter of discretion that it is unnecessary to consider all allegations. Benton, supra, 395 U.S. at 791, 89 S.Ct. 2056. However, we will discuss the issues raised relative to each count since there was but one confession and the offenses were somewhat entwined.

I.

Count One of the indictment charged the transportation of a 1966 Mustang automobile, identification number 6F07 T209 546, from Mobile, Alabama, to Pensacola, Florida. This vehicle was stolen in Mobile, Alabama, on January 3, 1969, and was found around February 26, 1969, in Alabama near the Florida-Alabama border. The Government's proof that Abigando possessed this vehicle, aside from his confession, was that his fingerprint was found on the car and a prescription bottle made out to his wife was found on the rear floorboard. There was also testimony from three witnesses that Abigando had been seen with a similarly described vehicle in Florida during the time that the stolen car was missing.

Count Two of the indictment charged the transportation of a 1965 Chevrolet, vehicle identification number 166 375D 118 082, from New Orleans, Louisiana, to Pensacola, Florida. The Government showed that a 1965 Chevrolet with this vehicle identification number, belonging to Louis Irving, Jr., was stolen from in front of his home in New Orleans on or about January 20, 1969. A car of this make and with this same identification number was recovered about February 14, 1969, in the possession of one Peter Burleson, near Pensacola, Florida. Burleson, testified that Abigando had delivered the car to him and had arranged for the car to be converted for stock car racing. Burleson also testified that the car had no motor when it came into his possession.

In addition to the above evidence, the Government introduced the oral confession made by Abigando to Federal Bureau of Investigation Agent William Bolyard. The confession covered both counts of the indictment.

II.

Abigando raises three challenges to the voluntariness of his confession, two of which are factual issues as to what occurred during his interrogation by Agent Bolyard.

The first concerns the adequacy of the Miranda warning given to Abigando. Abigando signed a waiver of rights form which was admitted in evidence. Bolyard testified that he read Abigando's rights to him, that Abigando read this form and stated he understood his rights.¹ Abigando admitted that Bolyard read his rights to him and that he must have read the form.

Abigando contends that he was told he could not have an attorney until he was charged with a crime, and that he was so worried about when he could see an attorney that he did not pay much attention to the warning the agent gave him nor to the printed form. The form repeatedly states that the accused has a right to the assistance of counsel during questioning.

The issue centers around the following question put to Agent Bolyard by defense counsel:

"Q. Did you make a statement to Mr. Abigando that if and when he was charged with a commission of a crime that if he desired an attorney, one would be appointed to represent him?

"A. That\'s right."

If it is correct that Abigando was told he could not have an attorney present during interrogation, the confession would be invalid. But the record does not establish this contention. The record of the proceedings immediately following the above-quoted question and response indicates strongly that even the trial judge did not appreciate the distinction which defense counsel was attempting to draw between advising of the right to counsel and stating in, effect, that there was no such right during interrogation.

The wording is that of defense counsel, not of the witness. In light of the other evidence indicating that a proper warning was given, this statement is not a sufficient basis for upsetting the determination by the trier of fact that a proper warning was in fact given.

Next, Abigando contends that his confession was involuntary because his wife's prescription bottle, found in the Mustang, was displayed to him and he was threatened that either he or his wife was going to jail. While there is some conflict as to whether or not the bottle was displayed to Abigando, it is undisputed that he was informed of its existence and where it was found.

Monroe Matheny, an Escambia County, Florida, deputy sheriff, was present with Agent Bolyard during this part of the interrogation of Abigando. He testified Bolyard told Abigando that they knew either he or his wife had "some connection" with the Mustang. Bolyard was never asked whether or not he had stated that there was "some connection," but he did deny threatening to prosecute Abigando's wife.

Of course, threatening to prosecute Abigando's wife with the evidence the officers had at the time would have been improper. It is also possible that being told that his wife had some connection with the Mustang could have been interpreted in Abigando's mind as a threat to prosecute her. But again we find there is an insufficient basis for upsetting the finding of voluntariness.

In his third argument attacking the voluntariness of his confession, Abigando attempts to show that he confessed while under severe mental stress. The above arguments that he thought he could not have counsel during questioning and his belief that his wife was being threatened with prosecution are put forth as factors adding to his mental stress.

In addition, Abigando was admitted to a hospital in New Orleans on February 12, 1969, suffering from a self-inflicted gunshot wound. He was then arrested by New Orleans police, and transferred to the parish prison three days later. He was evidently extradited to Pensacola, Florida, on May 12, 1969, and confessed eight days later. He remained in uninterrupted custody for over three months prior to his confession.

There is no reference in the record to any State proceeding, and there is raised on this appeal no allegation of unlawful detention or unnecessary delay in presentment to a magistrate. The long period of detention is set out as an indication of the stress claimed by appellant. This type of factual issue can best be determined by observing the demeanor of the witness and evaluating his credibility. On the present record we cannot set aside the district court's factual findings.

We conclude that Abigando's confession in which he implicated himself as to both counts of the indictment was made voluntarily.

III.

Abigando contends that the Government failed to prove that the 1965 Chevrolet was a "motor vehicle" within the contemplation of 18 U.S.C. § 2312. This term is defined in 18 U.S.C. § 2311: "`Motor vehicle' includes an automobile, automobile truck, automobile wagon, motorcycle, or any other self-propelled vehicle designed for running on land but not on rails."

When the Chevrolet was recovered it had no motor, and, therefore, appellant argues, it could not be self-propelled. But this argument must fail because Abigando confessed he stole the vehicle in New Orleans, and that he, with another person, drove it to Pensacola. This establishes that the 1965 Chevrolet was a "motor vehicle" at the time of its interstate movement. Whether the vehicle was transported with its original motor or another will not defeat the application of the statute here.²

IV.

With respect to the Mustang, the Government faced a two-pronged burden of proof. In order to sustain a conviction on this count, it was necessary to show not only that Abigando had possession of this vehicle, but also that at some point the vehicle was transported out of the State of Alabama.

Abigando's fingerprint on the Mustang, his wife's prescription bottle found on the rear floorboard, and the testimony of the witnesses who stated they saw Abigando in Florida with a similarly described vehicle would be insufficient to establish possession and interstate transportation. Proof that the accused was often in the company of one who had stolen cars has been held insufficient, even though the accused's fingerprints were found on the vehicle. Camilla v. United States, 6 Cir. 1953, 207 F.2d 339. Possession is not established by being seen in the passenger side of the automobile. Allison v. United States, 10 Cir. 1965, 348 F.2d 152. A recent Fifth Circuit case, Fitzpatrick v. United States, 1969, 410 F.2d 513, held that two defendants could not be convicted though they were riding in a recently stolen vehicle and ran from the scene when it was involved in an accident. They claimed they were hitchhikers, but the person whom they alleged was...