Ordered to be Reconsidered En Banc May 26, 1965.
Lumbard, Chief Judge, and Waterman, Moore, Friendly, Smith, Kaufman, Hays and Anderson, Circuit Judges.
Defendant appeals from a judgment of conviction based on a jury verdict that he violated the bail-jumping statute, 18 U.S.C. § 3146 (1964).*fn1 His appeal was first heard by a panel of this court, but on May 26, 1965, we ordered that his appeal be reconsidered by the active judges en banc together with six other cases, all involving issues raised by Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), and Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964).
In his brief and argument appellant presses only one point -- that his own post-indictment statement made to an agent of the Federal Bureau of Investigation when he was without counsel was erroneously introduced at his trial in violation of his rights under the rule of Massiah v. United States, supra.
We affirm on the ground that the failure to make proper objection before the trial court to the admission of the challenged evidence forecloses review of the asserted error.
Defendant was indicted on a narcotics charge and released on $20,000 bail. He failed to appear in court as directed on September 5 and 6, 1961, and his bail was held forfeited on September 7, 1961. He was indicted under the present charge of bail-jumping on June 29, 1962. At that time he was residing in Brazil. On May 24, 1964, defendant was arrested in Rio de Janeiro by Brazilian authorities who charged him with illegal entry into Brazil. The next day he was placed on a plane for New York.
On May 26 defendant was arrested by FBI agents who were awaiting his arrival at the airport in New York. FBI Agent Torpey testified that he "approached Mr. Indiviglio, told him who I was and placed him under arrest * * * at the bottom of the stairs that lead off from the airplane." Agent Torpey also testified, "I advised him of the charges against him. I told him that he had a right not to say anything to me if he didn't want to and that he had a right to counsel." Continuing his testimony Torpey said that defendant told him something of his activities during his stay in Rio de Janeiro.*fn2 Torpey then went on:
"I, after advising Mr. Indiviglio what the charge was against him, I asked him why he jumped bail and he advised me that he had requested a severance from the defendants in the other case and he had been turned down and he did not desire to stand trial with these other men.
"He asked me at one point if I had seen or heard from an attorney. He didn't identify the attorney. I told him no, I had not."
The agents took defendant to their Manhattan office, and he was brought before a United States Commissioner for a preliminary hearing.
Soon thereafter defendant secured the services of experienced counsel. His lawyer moved to suppress "as evidence all property obtained from and statements made by the defendant from the time of his arrest in Brazil until the time of his arraignment * * * on the ground that said property and statements were obtained during the course of an unlawful arrest, detention, search, seizure and interrogation * * *." This motion was labeled as brought under Rules 41(e) and 9(c) (1) of the Federal Rules of Criminal Procedure which pertain, respectively, to the illegal seizure of property and the requirement of a prompt hearing for persons arrested by federal officers pursuant to a warrant. The affidavit of defendant's counsel alleged that defendant had been kidnapped by federal agents in Brazil and forcibly brought to the United States without any legal authority for such action at the place of his arrest.
During Agent Torpey's testimony at the trial, defense counsel repeatedly objected on the same grounds as those advanced in defendant's pretrial motion. Judge Murphy overruled these objections; at one point he asked whether the objection was any different from defense counsel's earlier objection. Defense counsel stated that the objection was "for the reasons covered in my motion." When Torpey was asked what defendant had said, defense counsel made a general objection which was also overruled. The prosecutor during his summation emphasized Torpey's testimony concerning defendant's reason for going to Brazil without any objection by defendant.*fn3 At the time defendant was sentenced, he moved for a new trial, pointing out "the matter of the testimony of the FBI agent, as to what was told him by the defendant upon the defendant's arrival from Rio de Janeiro." He specifically renewed the claim made in the pretrial motion and protested the trial court's failure to hold a hearing on those allegations. Judge Murphy observed that perhaps defendant might better have argued for exclusion on the grounds of delay after arrest "under the McNabb case," but held that "no evidence was submitted with regard to that." The motion for a new trial was denied.
In summary, defense counsel made no contention in his pretrial motion, during the trial, nor in his post-trial motion, that defendant had been deprived of his Sixth Amendment right to counsel, nor, except for his question to the FBI agent about an unidentified attorney, does it appear in the record that defendant had retained a lawyer or requested the aid of counsel. The testimony shows that ...