United States v. Rosenberg, 71-2781 Summary Calendar.

• Decision Date: 10 May 1972
• Docket Number: No. 71-2781 Summary Calendar.,71-2781 Summary Calendar.
• Citation: 458 F.2d 1183
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andrew ROSENBERG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

458 F.2d 1183 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Andrew ROSENBERG, Defendant-Appellant.

No. 71-2781 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

April 20, 1972.

Rehearing Denied May 10, 1972.

Morton A. Orbach, Miami, Fla. (court appointed), for defendant-appellant.

Robert W. Rust, U. S. Atty., Miami, Fla., Marsha L. Lyons, Asst. U. S. Atty., for plaintiff-appellee.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Andrew Rosenberg was charged under a one-count indictment returned on February 4, 1971, with a violation of the Dyer Act, Title 18, U.S.C., Section 2312, interstate transportation of a stolen automobile. At his arraignment on February 18, 1971, Rosenberg entered a plea of not guilty. Rosenberg's motion to suppress was denied on February 22, 1971, at which time he withdrew his not guilty plea and entered a plea of nolo contendere. The nolo contendere plea was accepted by the district court and after additional testimony was received from F.B.I. Special Agent Kenneth Schiewe, Rosenberg was adjudged guilty and enlarged on bail to await sentence. Sentence was deferred pending presentence investigation and report. Rosenberg subsequently failed to appear April 29, 1971, pursuant to notice to present himself for sentence, and a bench warrant was issued. On September 7, 1971, the district court imposed a committed three-year sentence. This appeal timely followed. We affirm.

LEGAL EFFECT OF THE NOLO CONTENDERE PLEA

Following special agent Schiewe's testimony on February 22, 1971, a discussion took place in open court regarding the effect of the nolo contendere plea upon Rosenberg's preserving his objections to the evidence found admissible by the district court upon the motion to suppress:

"THE COURT: Are there any questions, sir?

MR. ORBACH:¹ No, your Honor. For the purpose of the record, I assume that our objection to these statements of the defendant is a continuing objection?

THE COURT: Yes, sir. Do you have any other testimony?

MR. HAUSER:² No further questions.

THE COURT: Do you have any other witnesses?

MR. HAUSER: No, sir, I do not.

MR. ORBACH: I might say that we have a continuing objection to anything to which we objected under the motion to suppress.

THE COURT: Yes, sir, you will. Considering the evidence which was adduced on the motion to suppress, together with the evidence which has just been stated to the Court, the Court is of the opinion and finds the defendant Andrew Rosenberg guilty of the offense charged in the indictment. For appellate purposes, however, so that the defendant\'s rights may be protected, I have specifically stated that I am considering all of that evidence. I would be doubtful whether or not without that evidence there would be sufficient to justify a verdict of guilty." (Emphasis supplied)

In United States v. Grayson, 5 Cir. 1969, 416 F.2d 1072, cert. denied 1970, 396 U.S. 1059, 90 S.Ct. 754, 24 L.Ed.2d 753, we observed:

"Additionally, since the judgment of conviction is based on a plea of nolo contendere, the legal equivalent of a guilty plea, the plea is an admission of guilt and a waiver of all non-jurisdictional defects, including the right to object to delay in trial under F.R. Crim.P. 48(b) or the Sixth Amendment. United States v. Doyle, 2 Cir. 1965, 348 F.2d 715, cert. denied 1965, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965)." 416 F.2d at 1077.

In Jaben v. United States, 8 Cir. 1964, 333 F.2d 535, the Court held that the defendant was not barred from asserting the statute of limitations as a defense to an indictment for income tax evasion by the entry of a plea of nolo contendere. Without discussing the effect of the nolo contendere plea, the Supreme Court addressed itself to the merits of Jaben's limitations theory. Jaben v. United States, 1965, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345.

Because of the uncertainty implicit in the treatment afforded Jaben, and considering the understanding, whether legally correct or not, arrived at in this case between the district court and defense counsel regarding the legal effect of the nolo contendere plea, we proceed to examine the matters presented to the district court in support of the motion to suppress.³

THE SEARCH AND SEIZURES QUESTION

On January 1, 1971, the manager of the Marlin Beach Hotel, located in Fort Lauderdale, Florida, summoned the city police. Detective Sam Vietro responded to the call and was advised by the manager that during the previous evening a firearm had been discharged in Room 201-A. The hotel registration book reflected that the room was occupied by one Clarence Bayer, who was driving a 1967 Ford Station Wagon bearing Ohio license plate number FB-192. Detective Vietro and a brother officer, Detective Bacher, approached Rosenberg and another person (previously identified as the occupants of Room 201-A) in the hotel restaurant. The two detectives asked Rosenberg and his companion, identified later as Bayer, if they occupied Room 201-A. After Rosenberg and Bayer answered affirmatively, they were placed under arrest, patted down for weapons and removed to the manager's office. In the manager's office, Rosenberg produced false identification in the name of Michael C. Murphy of Cleveland, Ohio. Bayer produced identification in his own name. The police officers then searched Rosenberg more extensively and found a wallet and an automobile key in Rosenberg's pocket. Rosenberg and Bayer were taken to the police station by Detective Vietro's companion. A short time later, Detective Vietro located on the hotel parking lot the 1967 Ford Station Wagon bearing Ohio tag number FB-192. He determined that the key taken from Rosenberg fit the vehicle, and had it towed to a public parking facility. On January 2 or 3, 1971, it was learned that the Ford Station Wagon was stolen. Two additional sets of license tags were found in the vehicle, both of which checked out as stolen.

Rosenberg argues that his arrest in the hotel's restaurant by Detectives Vietro and Bacher was unlawful because accomplished without a warrant. He reasons that but for the arrest, Detective Vietro would not have found the key to the stolen automobile, thereby rendering the license tags found in the...