United States v. Feinberg

• Decision Date: 31 July 1967
• Docket Number: Docket 30739.,No. 186,186
• Citation: 383 F.2d 60
• Parties: UNITED STATES of America, Appellee, v. Marvin FEINBERG, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

383 F.2d 60 (1967)

UNITED STATES of America, Appellee, v. Marvin FEINBERG, Appellant.

No. 186, Docket 30739.

United States Court of Appeals Second Circuit.

Argued November 18, 1966.

Decided July 31, 1967.

COPYRIGHT MATERIAL OMITTED

Ezra H. Friedman, Otto G. Obermaier, Asst. U. S. Attys., Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York, for appellee.

Irving Anolik, Hyman Bravin, New York City, for appellant.

Before WATERMAN, MOORE and HAYS, Circuit Judges.

WATERMAN, Circuit Judge:

This is an appeal from a judgment of conviction on a jury verdict in the United States District Court for the Southern District of New York. On June 1, 1966 appellant Feinberg was convicted on two counts, the first that of knowingly transporting a stolen motor vehicle in interstate commerce in violation of 18 U.S.C. § 2312, 18 U.S.C. § 2, and the second that of conspiring to commit the substantive offense, in violation of 18 U.S.C. § 371. Appellant was sentenced to imprisonment of one year and one day on the first count and to two years probation on the second count, but remains free on bail pending the determination of this appeal.

The government case established that Feinberg and his codefendant Damsky, who pleaded guilty to the conspiracy count and testified at the trial as a government witness, were joint owners of the Riverdale Auto School and Riverdale Auto Rental, Inc., located in Bronx County, New York. Early in January 1960 they were introduced to one Frank Giampetruzzi who claimed he could provide cars for their businesses for $1000 to $1200 each because there had been a "mix-up" in serial numbers at the automobile manufacturers' plants in Detroit. Damsky expressed interest and requested Giampetruzzi to supply them with a 1960 Lincoln Continental convertible.

During the night of January 17, 1960 such an automobile was stolen from its rightful owner who had purchased it for $5800 shortly before the theft. The next morning the car was delivered to Damsky and Feinberg by one John Newton. Feinberg prepared a bill of sale warranting the Lincoln's title free of liens and accident claims. Damsky and Newton then took this bill of sale to a nearby notary before whom Newton executed it. Damsky then registered the car in his own name, insured it and secured a $1500 personal bank loan on it, the proceeds of which were given to Feinberg. On April 22 the title to the Lincoln was transferred to the auto rental company which assumed the bank loan and paid the insurance premiums on the car. Damsky testified that they paid Giampetruzzi $1000 to $1200 for it.

A witness named Cioffi testified for the Government that he introduced himself to Feinberg as a friend of Giampetruzzi and represented himself as being in the same "business" as Giampetruzzi. He offered to supply stolen cars to appellant for $1000 each if appellant would obtain blank registration forms with counterfeit validation stamps. He testified that Feinberg did furnish 7 to 10 such forms for him by depositing them in a post office box whose combination Feinberg communicated to Cioffi, and he also testified, over objection, that after he received the counterfeit registration forms he stole and delivered to Feinberg, during April 1960, a 1959 Pontiac Bonneville convertible for the price of $100.

Cioffi and codefendant Damsky also implicated Feinberg in three additional stolen car transactions during the same period involving two 1960 Thunderbirds and a 1959 Cadillac.

In July 1960 Damsky had a document prepared by an attorney authorizing Damsky to drive the Lincoln. Feinberg executed the document in his corporate capacity. On July 14th Damsky and his wife left New York in the Lincoln and drove to Mexico City for the dual purpose of vacationing and of selling the car. He was arrested there by Mexican authorities for possession of a stolen car and was returned to FBI agents in Texas on July 25, 1960.

Appellant Feinberg testified in his own behalf. He denied any complicity in the purchase or sale of any stolen automobiles. He claimed that the price paid for the 1960 Lincoln had been $5700, not $1000 or $1200. He testified that he had purchased the 1959 Pontiac Bonneville for a fair price of $2500 or $2700. He denied participation in the three additional stolen car transactions testified to by Cioffi and Damsky and denied furnishing counterfeit registration blanks to Cioffi.

On cross-examination Feinberg was confronted with his signed handwritten statement of July 21, 1960, see fn. 7 infra, which he admitted that he had made to Detective Charles Francis of the New York City Police Department and which was inconsistent with portions of his trial testimony.

On July 21, 1960, four days before Damsky had been returned from Mexico, Detective Francis, a New York City detective, went to Feinberg's office and questioned him about the 1960 Lincoln and about the 1959 Pontiac. After being told he would be taken to headquarters "in the cuffs" Feinberg agreed to accompany Francis to the detective's office at police headquarters. On the way they first stopped at Feinberg's home to tell Mrs. Feinberg to take charge at the office, and then half-way to headquarters they stopped at a diner for coffee and cake. Arriving at headquarters the questioning continued, Francis informing Feinberg that Damsky had been arrested in Mexico and that the FBI was interested in the case. Francis did not inform Feinberg that he had a right to an attorney or to remain silent, but the record gives no indication that Feinberg was coerced in any way or subjected to tough detention-room tactics other than Feinberg's conclusory generalized statement that while he was with Francis "there was an awful lot of talking and browbeating and threats * * *." When requested to specify what he meant by stating that what was said or done constituted a threat, he replied, "Well, by no stretch of the imagination do I want to give the impression that it was a physical threat" but he meant that there had been "a lot of repetition." Within three hours after he had arrived at Francis's office, Feinberg prepared and executed a written statement regarding his participation in the Pontiac transaction, and later on wrote out and executed another, the one relative to his involvement with the 1960 Lincoln. Feinberg left police headquarters in custody, under arrest on a state charge for criminally receiving the Pontiac. He was admitted to bail the next morning, and a week later he was further questioned at his office by two FBI agents about the 1960 Lincoln transaction. He was indicted by New York for having criminally received the 1959 Pontiac, on October 3, 1961 was tried in Bronx County Court by the court sitting without jury, and was acquitted of the charge.

On June 14, 1965 the federal indictment in the present case was filed; trial thereon commenced on Friday, April 15, 1966, the jury returned its verdict on Tuesday, April 19, 1966, and judgment was entered and sentence pronounced on June 1, 1966.

Appellant contends upon this appeal that the delay between offense and prosecution violated his right to due process and a speedy trial guaranteed by the Fifth and Sixth Amendments respectively, thus requiring the trial judge to dismiss the indictment, or, at least, requiring the holding of a preliminary hearing to investigate the reason for the delay so as to ascertain the resulting prejudice, if any, the delay caused appellant. He also claims that the statement which he gave to the state authorities was made under such compromising circumstances as to require the trial judge either to exclude it from evidence or at least to hold a preliminary hearing to determine whether the statement had been voluntarily made. In addition, he maintains that the admission into evidence of testimony relating to an offense for which he had been previously tried and acquitted by state authorities subjected him to double jeopardy in violation of the Fifth Amendment and contravened the principle of collateral estoppel. Finally, appellant questions the propriety of the trial court's charge to the jury and the sufficiency of the evidence to support his conviction. We have thoroughly examined all of these contentions and conclude that none of them require a reversal of the judgment below.

1. The Pre-Prosecution Delay

The offense of which appellant has been convicted of having committed was consummated between July 14 and July 22, 1960 — the period in which Damsky drove the Lincoln Continental to Mexico. Appellant, however, was not indicted until June 14, 1965, some four years and eleven months after the offense and only one month before the expiration of the applicable statute of limitations. (18 U.S.C. § 3282). Where there has been a pre-arrest delay the statute of limitations is "usually considered the primary guarantee against bringing overly stale criminal charges," United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). Pre-arrest delay is usually free of the sometimes damaging effects of excessive post-arrest delay¹ for until he has been arrested one has not been deprived of his freedom or been publicly accused. Moreover, there may be valid justification for a pre-arrest delay. Timeconsuming investigation prior to an arrest minimizes the likelihood of accusing innocent parties and may facilitate the exposure of additional guilty persons. Once probable cause is established and an indictment filed, however, these justifications are of decreasing importance; the accusation has already been made, the prosecution has gathered at least a modicum of evidence, and news of the arrest will cause other implicated parties to take cover.² Also, at this point, the protection afforded by the statute of limitations expires because the statute of limitations only applies to a delay between the commission of the crime and the filing of the indictment. For these reasons a number of courts have held the constitutional shelter of...