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United States v. Lovejoy

decided: July 29, 1966.

UNITED STATES OF AMERICA, APPELLEE,
v.
JAMES A. LOVEJOY AND LLOYD JOHN RYER, APPELLANTS



Hays, Anderson, and Feinberg, Circuit Judges.

Author: Hays

HAYS, Circuit Judge:

Appellants Lovejoy and Ryer were convicted of possessing goods stolen from interstate commerce in violation of 18 U.S.C. ยง 659. Appellants claim that an incriminating statement made by their co-defendant, Carter, was improperly admitted into evidence against Carter. On this basis they challenge the rejection of their request for deletion of references to them from the statement, and the sufficiency of the limiting instructions given to the jury. When it was discovered after the trial that Carter was only fifteen years old, his conviction was vacated and he was treated as a juvenile offender. Appellants claim that their convictions should also have been set aside. We find no merit in appellants' contentions and therefore affirm the judgment.

The facts are relatively simple.

Appellant Ryer was employed as a truck driver, and co-defendant Carter as his helper, by Art-Ed Carriers of Manhattan. On April 23, 1965 Ryer and Carter were scheduled to make a delivery to the Wardex Terminal located at 33rd Street and 12th Avenue. Between 8 A.M. and noon, three cartons containing dresses and lamps, being shipped in interstate commerce, were stolen from the Terminal.

At about 12:30 P.M., agents of the Federal Bureau of Investigation, who had under surveillance a store at 105 East Broadway, saw both appellants and Carter pull up in an Art-Ed truck. The three men, carrying three cartons, left the truck and entered the store. The agents followed the men into the store and examined the cartons. Labels on the cartons indicated that they were to be shipped to Montgomery Ward stores in Missouri and Maryland. The men were placed under arrest.

Lovejoy, Ryer and Carter were immediately taken to headquarters of the Bureau at East 69th Street. At approximately 1:30 P.M., agents of the Bureau began to interrogate Carter. They advised him:

"that he did not have to make any statement, that any statement he did make could be used against him in a court of law; * * * that he had a right to contact an attorney of his choice and that if he couldn't get one, one would be provided for him by the Court."

A written statement containing Carter's story was prepared within the hour. At trial, the statement was offered "solely against" defendant Carter; the following was read to the jury:

"'At around 11:20, when we were making a delivery at Norman Consolidated, at 38th Street, New York City, between Twelfth and Eleventh Avenue, Lovejoy got on our truck. Lovejoy is James Lovejoy who was brought to the FBI office'*fn1 * * *

[Objection]

He then says 'We proceeded to Montgomery Ward's receiving platform on 33rd Street and Twelfth Avenue, New York City. On entering the yard I noticed four cartons on the ground near the fire hydrant. These cartons were unattended. We then drove up to the platform to make our delivery. The checker told us that he would take our bills but we could not be unloaded until after lunch. It was then 11:50. I then suggested that we go around the block and see if the four cartons were still near the hydrant. We did this and parked and watched the cartons for about ten minutes. During this time Lloyd Ryer' -- I will skip that portion.

'We knew they were not ours but decided to take them because they were just getting ...


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