United States v. Ferrara

• Decision Date: 08 May 1967
• Docket Number: Dockets 30455-30456.,No. 432-433,432-433
• Citation: 377 F.2d 16
• Parties: UNITED STATES of America, Appellee, v. Paul FERRARA, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

377 F.2d 16 (1967)

UNITED STATES of America, Appellee, v. Paul FERRARA, Appellant.

Nos. 432-433, Dockets 30455-30456.

United States Court of Appeals Second Circuit.

Argued April 20, 1967.

Decided May 8, 1967.

Joshua N. Koplovitz, New York City (Anthony F. Marra, New York City, on the brief), for appellant.

Michael W. Mitchell, New York City (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, Pierre N. Leval and Frederick F. Greenman, Jr., New York City, of counsel), for appellee.

Before LUMBARD, Chief Judge, and KAUFMAN and HAYS, Circuit Judges.

HAYS, Circuit Judge:

Appellant Ferrara was convicted by jury verdict in the United States District Court for the Southern District of New York of having violated and conspired to violate the federal naroctics laws, 21 U.S. C. §§ 173, 174;¹ 26 U.S.C. § 4705(a).²

While the jury was deliberating on the charges against him appellant and a codefendant became fugitives. Appellant was not apprehended until nearly six months later. He pleaded guilty to a charge of contempt of court arising out of his flight. He was sentenced to twelve years imprisonment on the narcotics convictions and was given one year on the contempt charge to be served after completion of his sentence on the narcotics conviction.

At the trial in June 1965 the government introduced portions of a question and answer statement taken from appellant after his arrest in which he confessed his participation in the sale of narcotics. The trial judge conducted a voir dire hearing out of the presence of the jury and concluded that the statement was not obtained under duress or coercion and was therefore admissible. On the voir dire a federal agent testified he had told appellant "if he cooperated with the United States Attorney I felt sure he would get out on reduced bail." Ferrara argues that the agent's "promise" renders his confession involuntary as a matter of law.

Ferrara relies on Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897). The Bram opinion cites with approval the statement in an English textbook that a confession is not voluntary if "obtained by any direct or implied promises, however slight". That language has never been applied with the wooden literalness urged upon us by appellant. The Supreme Court has consistently made clear that the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of "law enforcement officials was such as to overbear the defendant's will to resist and bring about confessions not freely self-determined * * *." Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961); see Haynes v. State of Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963), quoting Lynumn v. State of Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963).

There can be no doubt in the present case that defendant's statement was voluntary. Before the interview began the Assistant United States Attorney informed Ferrara, who was not uninitiated in the criminal law and who had two previous convictions, of all his rights, including his right to counsel and his right to remain silent. He was not subjected to any protracted interrogation nor was he threatened in any way. We hold that the agent's comment was not the kind of inducement or promise that would, by itself, make the confession involuntary.

Appellant also contends that the trial judge erred in instructing the jury concerning the permissible statutory inference of 21 U.S.C. § 174 (set out in full in footnote 1, supra). The court's initial charge on this question involved the substantive count against appellant's codefendant, and correctly stated that under Section 174 "in the absence of a satisfactory explanation" possession of narcotics "permits the inference that the heroin was imported contrary to law, and a further inference that the person in possession had knowledge of such unlawful importation." However, in dealing with count three of the indictment which charged both defendants with having violated Section 174, the court said:

"You remember what I told you the law provides with regard to that. If you are in possession, then unless you satisfactorily explain the possession, those elements illegal importation and knowledge have been met by the statutory presumption * * * which I read you not long ago."

Appellant concedes that no objection was taken to this second charge but argues that the reference to a presumption constitutes plain error which we may notice under Fed.R.Crim.P. 52(b).

We hold that the charge taken as a whole was not plainly erroneous. The second charge, whatever its failings, referred to the earlier correct charge. In a later charge the jury was instructed that it must find that Ferrara had constructive possession of the heroin before it could "apply that statute with regard to inferences that the heroin was unlawfully imported or that Ferrara had knowledge of the unlawful importation." The charge repeatedly referred to the government's burden of establishing guilt beyond a reasonable doubt. Finally it must be emphasized that the theory of Ferrara's defense did not raise the issue of his knowledge of illegal importation (see United States v. Aiken, 373 F.2d 294, 299 (2d Cir. 1967)). United States v. Hernandez, 361 F.2d 446 (2d Cir. 1966).

We have examined appellant's other claims of error at the trial and find them to be without substance.

On the other hand, we hold that appellant is correct in his contention that his...