Submitted to the In Banc Court May 26, 1965.
Lumbard, Chief Judge, and Waterman, Moore, Friendly, Smith, Kaufman, Hays and Anderson, Circuit Judges. Waterman, Circuit Judge (concurring in the result). Friendly, Circuit Judge (concurring). Kaufman, Circuit Judge (concurring). J. Joseph Smith, Circuit Judge (dissenting).
The question for decision is whether Richard Cone's statements made to customs agents on the street a few minutes after his arrest were properly admitted at his trial. The agents did not advise Cone of his right to remain silent and that what he said might be used in evidence. Cone did not ask to consult counsel prior to making the statements, nor was he advised of his right to do so. We hold that the statements were admissible and affirm the conviction.
Cone was tried under an indictment charging him with smuggling marijuana into the United States in violation of 21 U.S.C. § 176a. He was tried with two codefendants, Larry Spencer, who was charged with possession of marijuana when no transfer tax had been paid in violation of 26 U.S.C. § 4744(a), and David Moser, who along with Cone and Spencer was charged with conspiring to violate 26 U.S.C. § 4744(a).*fn1 Cone was found guilty of smuggling and was sentenced to the mandatory minimum five years imprisonment. Spencer was found guilty of unlawful possession and was given a suspended two-year sentence with a six-month probation. Spencer filed a notice of appeal, but the appeal was not prosecuted and has been dismissed.
The facts are as follows: On October 3, 1963, customs agents in Miami intercepted two packages which had been sent airmail from Panama. Finding that the packages contained marijuana, they resealed them and forwarded them to New York for delivery to the addresses, defendants Spencer and Moser. Customs agents were present when a mailman delivered one package to Moser at his home at 116-18 Grosvenor Lane in Queens on October 7. Moser invited the agents into his apartment and during the ensuing conversation the agents saw a strainer and bowl used to manicure marijuana. Moser then admitted that he knew marijuana was in the package and that Cone had mailed it to him from Panama; he said that Cone had phoned him that morning and asked that he deliver the marijuana to Cone at the Marshall Brown Rehearsal Studios, 247 West 72nd Street, Manhattan, when it arrived. The agents placed Moser under arrest.
Meanwhile, other customs agents had observed the delivery of the other package to Spencer at his home at 167 West 88th Street, Manhattan. Spencer first denied knowledge of the package. When the agents noticed marijuana "seeds" on a coffee table, they arrested him. A search of the apartment produced additional marijuana; Spencer then admitted that he had agreed to have Cone mail him the package from Panama in exchange for "a piece of the package."
As Moser agreed to deliver his package to Cone, several agents went with Moser to the Marshall Brown Studios area. Moser went in with the package; he came out about fifteen minutes later and reported that he had delivered it to Cone. The agents then entered the studios and identified themselves. Cone told agent Edward Coyne that he knew nothing about a package that had been delivered that day. When the package delivered by Moser was found under a chair in which Cone had been sitting, Cone denied ever seeing it, and agent Coyne arrested him. In Cone's coat, which was on a nearby chair, agent George Neilson found a small bottle containing marijuana of which Cone also denied knowledge, saying that someone must have put it there.
The agents then walked three or four blocks with Cone to a rendezvous point on Riverside Drive near 73rd Street. During the walk and while they were standing on the street waiting for a government automobile, agent Leonard McNeil engaged Cone in conversation. He told Cone that two witnesses had said that Cone had sought their permission to mail them the packages from Panama. He told Cone that "if he did cooperate with us I would call it to the attention of the U.S. Attorney, [but] that I could make him no promises." Cone then stated that he had mailed at least eight packages containing marijuana to Spencer, Moser, and one Kenneth Kaufman, and that his purpose had been to make "a dollar out of this deal."
Before trial Cone moved to suppress the seizure of the marijuana at the Marshall Brown Studios after his arrest on the ground that there had been no probable cause for his arrest, and to suppress a subsequent seizure of marijuana at his apartment. When the case was called for trial, Judge Murphy took testimony of the customs agents on this motion. Judge Murphy found probable cause for the arrest, a result that Cone does not question on this appeal. Judge Murphy also sustained the seizure at the studios; he suppressed the seizure at Cone's apartment on the ground that Cone had not freely given his consent to the search.*fn2 It is clear that the agents had probable cause to believe that Cone had smuggled marijuana into the United States and that their arrest of Cone and seizure of the package at the studios were lawful.
Cone urges on this appeal that the admission of his post-arrest statements made to government agents who failed to warn him of his rights to silence and counsel violated his Fifth and Sixth Amendment rights, as recently interpreted by the Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964)*fn3 Cone argues that when the statements were made he had become the "target" of the agents' investigation and that, since the purpose of the questioning was to elicit an incriminating statement, his response could not be used as he had not been warned. Cone does not seriously argue that the statement was in fact involuntary.
This appeal thus raises the question whether the circumstances under which Cone made his admission required that the agents advise him of his right to keep silent, his right to counsel, and that what he said might be used in evidence, and whether their failure to so advise was a violation of Cone's constitutional rights such that the trial court should have excluded the admission. After argument before a panel of this court, the active judges on their own motion, on May 26, 1965, ordered that this case, along with six others, be considered in banc. We hold that under all the circumstances there was no violation of any of Cone's constitutional rights in eliciting the statements, that the agents had no duty to advise Cone of any right to counsel or to remain silent, and, accordingly, that the statements were properly admitted and the conviction should be affirmed.
In our view, Cone's inculpatory statement to Agent McNeil was given voluntarily under circumstances which did not create any feeling that Cone was compelled to answer on pain of suffering physical or psychological mistreatment. We find no basis for any claim that such a brief and routine inquiry gave Cone reason to fear the consequences if he failed to speak. The conversation took place while the agents and Cone were walking from the studios on West 72nd Street to a point near Riverside Drive and 73rd Stret -- a distance of four blocks -- and during the few additional minutes spent waiting for a government car. Nothing in the record suggests any threat or any display of weapons or any attempt to place Cone in fear. Nor is there any claim that Cone was suffering from any physical disability, such as influence of narcotics, during the questioning. Moreover, it appears from Cone's testimony during the voir dire at trial that he was 27 or 28 years old and had attended college for one and one-third years.
Nor is there any substance to the claim that Cone was improperly induced to speak by a promise of leniency. Agent McNeil's statement to Cone that "if he did cooperate with us I would call it to the attention of the U.S. Attorney" -- to which McNeil added that he could make no promises -- was a proper and accurate statement of fact. Of course, the agents wanted Cone to tell what he might know and it was natural that they should extend the invitation in a way which pointed out a possible advantage of disclosure. What was said was no more than the obvious. Cf. Ashdown v. State of Utah, 357 U.S. 426, 78 S. Ct. 1354, 2 L. Ed. 2d 1443 (1958). We find nothing in the Due Process or Self-Incrimination clauses of the Fifth Amendment, as written or interpreted, that requires us to exclude from evidence an admission made under all the circumstances of this case.
The agents did what was required by all accepted police practices and what any citizen would have expected them to do under the circumstances when they questioned Cone fairly and noncoercively. Their duty was to secure all available information bearing upon the importation of marijuana and those who might be implicated. This required that they question Cone as they had questioned Moser and Spencer; of course, meaningful questioning involved explaining to Cone what they knew about his receipt of the package of marijuana.*fn4 Whether Cone would implicate Moser and Spencer or any others, whether he could absolve himself, they could not know. In fact, Cone admitted that he had asked Moser and Spencer to receive the packages and bring them to him and, in addition, he gave the name of a fourth person, Kaufman.
It was the duty of the agents to question Cone and all others who might be concerned regardless of whether they already had enough information to justify Cone's arrest -- as it is conceded that they had here -- and regardless of whether, by any test, they had enough evidence to prosecute. It has been suggested*fn5 that the process of questioning suspects may be dissected into "investigatory" and " accusatory" phases and that certain legal conclusions, such as whether the Sixth Amendment's right to counsel "attaches" and requires that the suspect be advised of his rights to silence and counsel, should flow from a judicial finding that police questioning has passed beyond mere investigation. We do not consider this a realistic doctrine for most cases. It was not the job of the agents questioning Cone, nor were they qualified to make nice decisions about the sufficiency of the evidence they possessed; nor could they at the time of arrest determine what charges should be formally made and against whom. Agents in hot pursuit of those whom they have reason to believe may be implicated in a crime which has just been discovered cannot be required "on the spot" to decide difficult questions of the sufficienty and quantum of proof.
We think a judicial inquiry into whether the agents were still in the "investigatory" stage when they arrested Cone, and whether what had started out as an investigation had reached the "accusatory" stage when Cone was questioned immediately after his arrest, would serve no useful purpose. What may seem to be sufficient evidence at one stage of an investigation may become quite insufficient when those who have supplied information are themselves accused and become unavailable to the government as witnesses, as happened with Moser and Spencer in this very case. To make judicial assessment of the questioning process turn on whether questioning occurred when a case was no longer in the "investigatory" stage and had entered the "accusatory" stage would force ...