United States v. Venere, 26428.

• Decision Date: 09 September 1969
• Docket Number: No. 26428.,26428.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles VENERE and Robert Anthony Perrotta, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

416 F.2d 144 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Charles VENERE and Robert Anthony Perrotta, Defendants-Appellants.

No. 26428.

United States Court of Appeals Fifth Circuit.

September 9, 1969.

Robert Josephsberg, Miami, Fla. (Ct. Apptd.), for appellants.

William A. Meadows, Jr., U. S. Atty., Theodore Klein, Asst. U. S. Atty, Miami, Fla., for appellee.

Before GEWIN, McGOWAN^* and MORGAN, Circuit Judges.

McGOWAN, Circuit Judge:

Appellants were convicted in the United States District Court for the Southern District of Florida of conspiring to commit offenses against the United States i. e., possessing and passing counterfeit bills, and of the substantive crimes of possession and attempted uttering of such bills. 18 U.S.C. §§ 371, 472, and 2. A jury was waived, and the court heard the case on a stipulation of facts which included by reference the evidence taken on the hearing of a pretrial motion to suppress.

The errors now urged on this appeal are (1) certain identification evidence should not have been received and considered without a finding of a source independent of an allegedly improper pretrial confrontation, (2) the court fatally prejudiced appellants by denying their pretrial motions for separate trials and (3) incriminating statements made by appellants, while at liberty on bond before trial, to a Secret Service Agent in Boston were wrongfully received. Our examination of the record in the light of these contentions fails to convince us that any one of them is well taken and we affirm.

I

On December 5, 1967, at about 9:00 P.M., the head cashier at the Dania (Florida) Jai Alai Stadium discovered two counterfeit $20 bills in the money taken in at the betting windows. The cashier told the head supervisor, Mr. Kolson, that the bills were in the money received from a ticket seller named Harrison. Kolson took the two bills immediately to Harrison, and was told by him that the bills had come from two men wearing blue "Miami Beach" sweatshirts who had placed bets at his window ten minutes earlier. Harrison testified that he had taken in only three $20 bills altogether, and he remembered the two individuals because of the distinctiveness of their sweatshirts and also because the two $20 bills they had given him were unusually crisp, which was the condition of the counterfeit bills.

Two security employees of the Stadium went out to find the two men described by Harrison. They were spotted immediately among the spectators, and were asked to go to the first aid room of the Stadium. They were left alone for a brief time in that room while the security employees went to report their presence there to Kolson and other Stadium officials. Kolson took Harrison immediately to the first aid room where Harrison confirmed that the two were the men who had given him the counterfeit bills. The Dania police were called, and, upon their arrival, advised appellants of certain of their rights. Venere declined to make any comment, but Perrotta stated that he had bought tickets earlier in the evening with $20 bills, although he did not know they were counterfeit. The police then arrested them both, and took them to police headquarters.

Promptly after arrival at police headquarters, and after renewed warnings but before any interrogation had commenced, Perrotta took Officer Hagen aside and told them that he, Perrotta, had hidden counterfeit $20 bills in the desk of the first aid room at the Stadium. An officer was sent back to find the bills, and he returned with 47 of them.

About 11 o'clock that evening Secret Service Agents arrived at police headquarters. They fully advised appellants of their rights. Venere refused to sign a waiver and declined to discuss the matter. Perrotta, contrarily, signed a waiver and made admissions to the effect that he had bought $1000 worth of counterfeit $20 bills, had passed one at a fruit stand before going to the Stadium, and had passed two at the Stadium betting window. He said that he alone was responsible.

The next day (Dec. 6) at about 1:00 in the afternoon, Secret Service Agents reinterviewed Perrotta, and he repeated his admissions of the previous evening in somewhat more detail but still implicating only himself. Later that same afternoon, at about 3:00, the agents again tried to speak with Venere. He still refused to discuss the crime with the agents beyond denying any complicity, but he did at that time sign a waiver after full warnings were given. Before leaving, the agents told Venere that he should tell the jailer to call the agents should he wish to talk. A few hours later, about six or seven in the evening, Venere had the jailer call the agents, and upon their return he, too, admitted his knowing participation in the crime.

Appellants were taken before the United States Commissioner on December 7, and released on bond.¹ An indictment was returned against them on December 14. At the arraignment, their counsel asked the court to give appellants permission to return to their homes in Boston pending trial, and that consent was given.

About six weeks later, on January 29, 1968, Venere appeared at the Secret Service Office in Boston. He told the receptionist that he had passed counterfeit notes in Miami, and wished to speak to someone in authority. The receptionist reported this to the Assistant Special Agent in charge, one Sweeney, who directed her to let him come in. He introduced himself to that officer, indicated his willingness to co-operate with the Government, and stated his desire to plead guilty in Boston and not to have to go back to Miami. The Agent stopped him at this point, fully advised him of his rights, and offered him a waiver form, which he signed.

Agent Sweeney testified that in the subsequent discussion Venere fully revealed his guilty participation. He also indicated his belief that he would get a lighter sentence in Boston than in Miami, and repeatedly inquired about the possibility of having the case transferred. Sweeney advised him that he should get a lawyer to counsel with him on these matters. Venere ended the interview by volunteering the information that he would get in touch with Perrotta, and that both of them would be in again.

Both did appear the very next afternoon. Sweeney gave them full warnings at the outset of the conversation, and each signed a waiver. The Agent made a memorandum of their conversation, in the course of which each appellant again revealed himself as a knowing participant in the illegal transactions charged against them.

The trial court denied the motion to suppress in all respects, and also the motion of each appellant for a severance. Thereafter, the Government elected not to introduce at trial the incriminating statements made by appellants on December 6; and the stipulation of facts was drawn up with no reference to these disclosures other than the statement that "The Government is specifically excluding from this trial any and all confessions made on the afternoon and evening of December 6, 1967."

II

The stipulation of facts indicates that, immediately after appellants came to the first aid room in the Jai Alai Stadium with the security employees, Harrison came in with Kolson and said they were the men from whom he had received the counterfeit bills. Although appellants intimate in their brief that there is some indication in the record that appellants were then in the custody of the Dania police, we think the stipulation of facts suggests that the Dania police had not arrived as yet, and this interpretation has support in the testimony at the hearing on the motion to suppress.²

Thus we take the confrontation to have occurred when the management of the Stadium was still engaged in investigating the counterfeiting incident. Ten minutes after the bills were passed, their counterfeit character had been discovered, a check had been made of the ticket sellers, and Harrison had responded affirmatively by identifying the two bills as the ones he had received from two men wearing the blue sweatshirts. With the two men fitting this description immediately located in the audience and asked to come to the first aid room, Harrison was asked to say if these were the two men he meant. He said that they were, and returned immediately to his ticket window to resume work. The Dania police were called. When they arrived, one of the two men told them that $20 bills, not known to be counterfeit, had been used to buy tickets. The police took the men immediately to the police station for booking.

It is now argued to us that Harrison could not identify appellants at trial because his prior confrontation with them in the first aid room was an infringement of appellants' rights to due process of law under the Fifth Amendment, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and to counsel under the Sixth Amendment, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). We are far from persuaded that either of these doctrines is applicable to the events here involved in a non-police context.³ The course pursued by the management of the Stadium, as revealed by this record, was an eminently rational one, and well within the rights of a private citizen to respond to the apparent commission of a crime against himself.

Stovall and Wade were concerned with confrontations arranged by the police for persons in their custody after lawful arrest, and they are powerfully suggestive of the desirability, if indeed not the necessity, that the police employ the device of the formal lineup for identification purposes. Where police custody is involved, the need for a formal lineup may not be circumvented by keeping the arrestee away from the station house while contriving confrontations of a more informal nature. See Rivers v. United States, 400 F.2d 935 (5th Cir. 1968). But the private citizen who intercepts a stranger fleeing from his house pursued by the screams of his wife surely...