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United States v. Fox

decided: October 18, 1968.

UNITED STATES OF AMERICA, APPELLEE,
v.
JACK SOLOMON FOX AND SAMUEL NORBER, DEFENDANTS-APPELLANTS



Moore and Friendly, Circuit Judges, and Bryan, District Judge.*fn* Moore, Circuit Judge (dissenting).

Author: Bryan

FREDERICK van PELT BRYAN, District Judge:

After trial before Judge Tyler and a jury appellants were each convicted on two counts: first, of knowing possession of 77 cartons of drugs of the value of over $100 stolen from an interstate shipment (18 U.S.C. § 659), and second, of conspiring to receive and transport in interstate commerce stolen goods of a value exceeding $5,000 (18 U.S.C. § 2314). They appeal from the judgments of conviction.

The principal contention on this appeal is that a prearraignment statement given by appellant Fox to F.B.I. agents should not have been admitted in evidence. It is urged that the warnings given to Fox were inadequate under the standards set in Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The jury was entitled to find the following facts:

On December 20, 1963 a truck containing some $200,000 of Squibb drugs moving in interstate commerce was hijacked in New York City. In late December or early January 1964 the stolen drugs were stored by Paul DeVito and Anthony Rinaldi in the basement of an empty drug store in Rocky Point, Long Island.

In February, 1964, appellants Fox and Norber jointly borrowed $5,000 from a Detroit bank, ostensibly in order to buy for quick re-sale some distress merchandise then available at bargain prices. The money was placed in Norber's account. On March 3, 1964, Fox and Norber drove to New York in Fox's Ford Econoline truck and checked into a double room at the Travel Lodge Motel in mid-Manhattan.

On March 5 Fox drove his truck to the empty drug store in Rocky Point, Long Island, and a portion of the stolen drugs in the basement was loaded into the truck. Fox then drove the truck back to the Manhattan motel. On March 6 DeVito called Fox and Norber in their motel room, asking to speak to "Fox or Sam."

On March 7 Fox and Norber checked out of the motel and drove in Fox's truck toward the Lincoln Tunnel. As they were about to enter the tunnel they were arrested by F.B.I. agents. In the truck were 77 cartons of the stolen drugs worth approximately $14,000. On the top of the cartons was a blue plastic bag containing several Squibb drug price lists, a handwritten inventory of the cartons in the truck, and 11 Squibb invoices showing the prices of several of the items found in the truck. When Fox and Norber were searched, Fox had a slip of paper on which he had written directions to the Rocky Point drug store.

At the end of the Government's case Norber rested. Appellant Fox took the stand. He testified in substance that he was in the barber and beauty supply business in Detroit; that he and Norber had borrowed the $5,000 for the purpose of picking up some merchandise at a close-out; that he had come to New York (where he met Norber by pre-arrangement) to pick up an order of beauty and barber supplies which he collected only after he was arrested and released; that on the night of March 3 and the morning of March 4 he had conferred with a William Marcus, a Detroit drug wholesaler, who introduced him to a man known as "George"; that on March 4 Fox and George had driven to the Rocky Point drugstore, loaded some drugs and returned to the motel; that on the night of March 4 Fox had stomach cramps and gave the key to his truck to Marcus who took it and returned the truck to Fox that evening emptied of its contents; that the next morning Fox again went to Rocky Point where he met George and gave him a slip of paper from Marcus; that George loaded the truck with cartons and both drove back to the motel and that Fox and Norber were arrested on March 7 with the second load of drugs as they were starting out for Detroit. Fox said he believed the drugs to have been close-out merchandise which had been obtained by Marcus and testified that he did not know that they were stolen.

On cross-examination Fox denied telling the arresting agents that he had been at Rocky Point looking for a racetrack on March 4; that they had asked him any questions about the contents of the truck or that he had told them that he didn't know what the contents were; or, in fact, that he had told them anything.

On rebuttal the Government called McGillicuddy, an F.B.I. Agent, who had been present at the arrest and interrogation of Fox on March 7th. McGillicuddy testified that after the arrest he and agents McGoey and Saunders took Fox to the F.B.I. office in Manhattan, and that, "Agent McGoey advised Fox that he didn't have to make any statement; that any statement that he made could be used in a court of law and he could consult an attorney prior to any question," and that the defendant indicated that he understood the advice given him.

According to McGillicuddy, Fox, after being so advised, was asked about the contents of the truck. Fox said that the truck contained approximately 70 cartons of merchandise and that he was not aware of what the merchandise was; that he didn't know the individuals from whom he had purchased the goods; that when he was asked why he had been in the Rocky Point Area of Long Island on March 4th, he said that he had gone to the Island on the 4th looking for a racetrack; that he hadn't found a racetrack on that day and that he didn't know anybody at Rocky Point.

The appellants challenge the admissibility of the McGillicuddy testimony as to the Fox statements, primarily on the ground that the warnings given to Fox did not satisfy minimal Miranda standards.

The Government counters with the claims (1) that no proper objection on Miranda grounds was made at the trial to the admission of this evidence, and (2) that even had proper objection been made, Fox's statements would still have been admissible since "their sole effect was to impeach his credibility on a collateral matter -- his trip to Rocky Point and his dealings with Marcus and the mysterious 'George.'" The Government also suggests that "no desirable purpose would be served in extending the prophylactic rules of Miranda to exclude the statements at issue here, especially where the warning given was a fair one which fully complied with the law before Miranda."

In Miranda v. State of Arizona, the Supreme Court held that

"When an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-in-crimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence ...


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