United States v. Holland

• Decision Date: 11 February 1971
• Docket Number: 20364.,No. 20363,20363
• Citation: 438 F.2d 887
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Lee HOLLAND, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kenneth CARRIERO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

438 F.2d 887 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. David Lee HOLLAND, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth CARRIERO, Defendant-Appellant.

Nos. 20363, 20364.

United States Court of Appeals, Sixth Circuit.

February 11, 1971.

Thomas A. Williams, Chattanooga, Tenn., Court appointed, for defendant-appellant David Lee Holland.

Barry L. Halpern, Miami, Fla., for defendant-appellant, Kenneth Carriero.

Jerry Foster, Asst. U. S. Atty., Chattanooga, Tenn., for plaintiff-appellee; John L. Bowers, Jr., U. S. Atty., Chattanooga, Tenn., on brief.

Before TOM C. CLARK, Associate Justice,^* PHILLIPS, Chief Judge, and PECK, Circuit Judge.

PHILLIPS, Chief Judge.

Kenneth Carriero and David Lee Holland, Jr., were indicted¹ in a single-count indictment charging them with interstate transportation of stolen jewelry, knowing the same to have been stolen, in violation of 18 U.S.C. § 2314. They were tried jointly and each was found guilty by the jury. Each appeals from the judgment of his sentence. We affirm.

On the evening of March 6, 1969, the residence of Mr. and Mrs. Schlossman in Miami, Florida, was burglarized and a quantity of jewelry was stolen. At that time Mr. and Mrs. Carriero, Herbert Jacobs, the eighteen year old brother of Mrs. Carriero, and Holland, an acquaintance of Jacobs and of the Carrieros, all were living together in the Carriero apartment in Miami.

On March 11, Mrs. Carriero and Jacobs went into a jewelry store in Chattanooga, Tennessee, and attempted to sell several items of jewelry having a minimum value of $23,500. The jeweler became suspicious and called the Chattanooga police. A Chattanooga police officer came to the store and, after questioning Jacobs and Mrs. Carriero, he asked Jacobs to accompany him to the police station while the detective checked out the jewelry. Jacobs accompanied the detective to the station. Mr. Carriero, who had remained outside the store in a parked car, and Mrs. Carriero followed Jacobs and the police officer to the station. At the station Jacobs and Mr. Carriero were questioned and about three hours after their arrival were arrested for vagrancy. The vagrancy charge was dismissed by the judge of the City Court, apparently on the same day. None of the statements made by any of the parties involved in the March 11 events were admitted in evidence at the trial in the District Court.

The Chattanooga police released the parties, but retained custody of the jewelry and turned it over to the FBI. On March 20, the jewelry was discovered to be the stolen property of the Schlossmans and a federal warrant was issued for the arrest of Mr. and Mrs. Carriero and Herbert Jacobs. The warrant was executed the following morning in Miami, where Mr. and Mrs. Carriero and Herbert Jacobs were arrested at their apartment. Holland was present at the apartment at the time of the arrest, but no warrant had been issued for his arrest and he was not taken into custody until sometime later. This was the first time any law enforcement authorities became aware of Holland or his association with the Carrieros or Jacobs.

District Judge Frank W. Wilson found that the arrests of the Carrieros and Jacobs were made pursuant to a warrant of arrest and were lawful in all respects. We agree with that conclusion. The fact that the officers did not have physical possession of the warrant at the time of the arrest is of no consequence to the validity of the arrest. Fed.R.Crim.P., Rule 4(c) (3); Barber v. United States, 412 F.2d 775 (5th Cir.).

At the time of the arrests, the FBI agents made a search of the apartment and found a receipt indicating the sale of jewelry in New York on March 17, 1969, and an airline ticket in the name of David Holland for a flight from Chattanooga to Miami dated March 11, 1969. These exhibits were introduced in evidence at the time of the trial.

The Carrieros and Jacobs were taken to FBI headquarters in Miami and Holland was asked to accompany them. Holland was questioned for approximately five hours by the FBI and then placed under arrest by the Miami police and transferred to the Dade County Jail. On March 27, different FBI agents went to the county jail and, after advising him of his constitutional rights, questioned Holland again.

The trial judge suppressed all statements by the Carrieros and Jacobs made prior to their being advised of their rights upon arrival at the FBI headquarters. He also refused to admit in evidence any statements of Holland prior to the March 27 questioning.

Both Carriero and Holland raise several issues on this appeal. Holland's primary complaint revolves around the admissibility as evidence of certain statements made by him to the FBI agents on March 27. We find that all the statements of Holland admitted in evidence by Judge Wilson were given freely and voluntarily after complete and adequate warnings as to his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. These statements were not the "fruit of a poisonous tree" in the sense that they were made only because Holland was aware that the officers already had incriminating evidence against him. Before the March 27 interview, Holland steadfastly refused to answer questions by the FBI. From a reading of the record it is clear that he was well aware that he still had that right on March 27, but chose to waive it and discuss the matter with the officers. Nothing in the record indicates that he was confronted on March 27 with the airline ticket, jewelry receipt or any of the statements he had made prior to his arrest. Contrary to the situation in Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L.Ed.2d 171, we hold that Holland's statements to the FBI were not precipitated by illegally obtained evidence.

Holland also complains that the Court committed reversible error when it admitted the airline ticket in evidence. He contends that the ticket was seized in violation of his Fourth Amendment rights....