Appeals from judgments of the United States District Court for the Southern District of New York, Edmund L. Palmieri, Judge, entered on jury verdicts that convicted each defendant of four counts of smuggling and related crimes.
Lumbard, Winter and Pratt, Circuit Judges. Lumbard, Circuit Judge, concurring.
Defendants appeal their convictions for smuggling, 18 U.S.C. § 545, removing goods from customs' custody, 18 U.S.C. § 549, receipt of stolen goods, 18 U.S.C. § 2315, and conspiracy, 18 U.S.C. § 371. None of defendants' contentions on appeal warrants reversal; we write this opinion solely to express this panel's disapproval of the pre-arraignment interview practice engaged in by the United States Attorney's office for the Southern District of New York.
Defendants, both longshoremen, were caught by customs agents at about 12:14 A.M. entering two cars illegally parked on Pier 90 in Manhattan near where the ocean liner Queen Elizabeth II had been berthed only a few hours earlier. Inside the cars were cartons of liquor, caviar, lobster tails, and other foodstuffs which had been taken from the Q.E. II. One of the cars was owned by defendant Foley, the other by Edward Gray, a dock hiring boss. Edler's empty car was parked nearby.
After questioning by the agents, defendants were given summonses to appear the following afternoon at the office of the United States Attorney for the Southern District of New York. Anticipating formal charges and arraignment, an Assistant United States Attorney (AUSA) notified the magistrate, who in turn notified a legal aid attorney that he would be required to represent both defendants at their arraignment scheduled for 5:00 P.M. Immediately, the legal aid attorney called the AUSA and requested that his clients not be interviewed. Ignoring the request, the AUSA kept both the magistrate and legal aid counsel waiting for two hours while he interviewed the defendants. Only then did the AUSA permit the arraignment to go forward.
Before considering our difficulties with the prearraignment interview, we briefly dispose of the other two issues raised on appeal. First, both defendants argue that the district judge erred when, in response to a jury request that the trial judge explain "very simply the facts" of the substantive counts, he expressed his opinions as to the weight of the evidence bearing upon some of the elements in the case. For example, he opined that, as to whether the merchandise was contraband, "I think it's perfectly clear from the evidence, and I don't see how you can come to any serious difficulty in concluding that this fancy merchandise was contraband, that is, that it wasn't legally in the United States when it was on that pier in those two cars." He further observed that the evidence about the merchandise being contraband "is almost uncontradicted" and "should be very persuasive in your opinion".
Of course, a district judge may not usurp the jury's fact-finding functions, but we find no error here, because the trial judge made the jury's proper function clear not only in his main charge, but again before beginning his supplemental instruction, when he said, "Let me stress right now that it is you who have the stupendous responsibility of finding the facts, not I who am supposed to tell you the facts." Further on, referring to the facts he was commenting about, he reminded the jury of their duty and power concerning the facts at least 15 times in 16 pages of the transcript, with such comments as "It's up to you entirely", and "This is only a respectful suggestion because you are free to reject any evidence in the case".
There is no claim that the trial judge either mischaracterized or unfairly summarized the evidence, and as we recently noted:
The trial judge in a federal court may summarize and comment upon the evidence and inferences to be drawn therefrom, in his discretion * * *. So long as the trial judge does not by one means or another try to impose his own opinions and conclusions as to the facts on the jury and does not act as an advocate in advancing factual findings of his own, he may in his discretion decide what evidence he will comment upon. His fairness in doing so must be judged in the context of the whole trial record, particularly the evidence and the arguments of the parties.
United States v. Lartey, 716 F.2d 955, 966 (2d Cir. 1983) (quoting United States v. Tourine, 428 F.2d 865, 869 (2d Cir. 1970), cert. denied, 400 U.S. 1020, 91 S. Ct. 581, 27 L. Ed. 2d 631 (1971)). Accord Quercia v. United States, 289 U.S. 466, 469, 77 L. Ed. 1321, 53 S. Ct. 698 (1933). Viewing the supplementary instructions in the context of the entire case, we hold that the trial judge did not in this instance exceed the bounds of his proper function.
Second, Edler contends that statements he made to the customs officers after they stopped him and Foley on the pier should have been suppressed by the district court for failure to give him a Miranda warning. The court found a Miranda warning was not required, because the statements had been voluntarily made pursuant to a lawful investigative stop, see Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229 (1983); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), at a time when Edler was neither under arrest nor subject to custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966); Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977); United States v. Ross, 719 F.2d 615, 621-22 (2d Cir. 1983). Since the district judge's findings on these matters are not clearly erroneous, we find no error in his refusal to suppress. See United States v. Ross, 719 F.2d at 621-22; United States v. Hall, 724 F.2d 1055, 1060 (2d Cir. 1983).
Finally, we turn to the pre-arraignment interview. Prosecutors, of course, like to have statements from a defendant, and much of our criminal jurisprudence in recent years has reflected the determination of courts and legislatures to develop procedures that will prevent unfair use of a defendant's statements without unduly hampering legitimate and fair law enforcement efforts. In this struggle a defendant's "right to counsel" has played a significant role. Courts have barred the use in evidence of a defendant's statements elicited by investigating officers or prosecutors not only in violation of a defendant's fifth amendment right to have counsel present during questioning, e.g., Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981); Tague v. Louisiana, 444 U.S. 469, 62 L. Ed. 2d 622, 100 S. Ct. 652 (1980); United States v. Little, 647 F.2d 533, 534 (5th Cir. 1981); United States v. Howard, 426 F. Supp. 1067, 1071 (W.D.N.Y. 1977), but also in the absence of a clear waiver of counsel after the sixth amendment right to counsel "attaches", e.g., Brewer v. Williams, 430 U.S. 387, 404-06, 51 L. Ed. 2d 424, 97 S. Ct. 1232 (1977); United States v. Mohabir, 624 F.2d at 1140, 1151 (2d Cir. 1980); United States v. Satterfield, 558 F.2d 655, 657 (2d Cir. 1976); United States v. Lilla, 534 F. Supp. 1247, 1280-81 (N.D.N.Y. 1982).
As a matter of practice and policy the United States Attorney's Office for the Southern District of New York, apparently alone in the federal system, see United States v. Duvall, 537 F.2d 15, 23 (2d Cir. 1976), cert. denied, 426 U.S. 950, 49 L. Ed. 2d 1188, 96 S. Ct. 3173 (1976); United States v. Restrepo-Cruz, 547 F. Supp. 1048, 1060-62 (S.D.N.Y. 1982), routinely has an AUSA interview uncounseled defendants just before they are taken before a magistrate where, pursuant to Fed. R. Crim. P. 5(a), they will be informed of the charges against them, advised of their constitutional rights, and have counsel assigned to them if needed. The United States Attorney defends his current use of this practice, patently suspect because it permits a lawyer to interview a layperson on the subject of his upcoming prosecution, on the ground that the interview does not occur at a critical stage of the prosecution and therefore does not require the assistance of counsel. He argues that no "commitment to prosecute" has yet been made, and he refers to "salutary purposes" served by the practice, claiming that it produces "potential beneficial" effects to the defendant and enhances the quality of criminal justice. Among the "vital" law enforcement functions he urges are served are obtaining voluntary confessions by culpable individuals, easing the burdens of court congestion, enabling the prosecutor to concentrate on cases that are more likely to go to trial, evaluating the voluntariness and accuracy of previous statements ...