Appeal by Arona Fary Diop from conviction and sentence in narcotics prosecution in the United States District Court for the Eastern District of New York, John F. Dooling, Jr., Judge, claiming error pursuant to 18 U.S.C. § 3501.
Smith, Oakes and Meskill, Circuit Judges.
This appeal deals with the application of 18 U.S.C. § 3501 during the trial of Arona Fary Diop before the United States District Court for the Eastern District of New York, John F. Dooling, Jr., Judge. Diop was convicted on trial to the jury on four counts of importing and possessing with intent to distribute 950 grams of opium and 32 kilograms of hashish, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 841(a)(1). We find no error and affirm.
On November 7, 1975 Diop, a citizen of Senegal, went to John F. Kennedy International Airport ("JFK") to pick up a crate which had arrived on a Pan American World Airways flight from Abidjan, Africa. Diop told Gerard Brady, the general manager and customs house broker for Continental Air Cargo, that the crate contained musical instruments. After paying Brady $125.36 for duty, bond, and service charges and completing the appropriate documents, Diop went to the customs inspection room and handed the documents to United States Customs Inspector Grabbatin. Grabbatin discovered a false bottom in the crate and found in the false bottom substances later identified as opium, hashish, and marijuana. Grabbatin informed Diop he was under arrest and read him his Miranda rights in English. Grabbatin then called the Drug Enforcement Administration ("DEA"). While waiting for the DEA agents to arrive, Diop and Grabbatin had a brief conversation. DEA agents Joseph Giaimo and John Huber, along with two other DEA agents, then arrived. Agent Giaimo told Diop he was under arrest and again read him the Miranda warnings in English. Giaimo and Huber then had a conversation with Diop.
Prior to trial Diop moved to suppress the post-arrest statements he had made to Grabbatin and all the statements he had made to Giaimo and Huber. Diop claimed that his understanding of English was so bad that he had not understood the Miranda warnings and had not realized he was under arrest. Following testimony by Brady, Grabbatin, Giaimo, Huber, Gorgui Diaye (an interpreter), and Diop, Judge Dooling ruled that the government had not borne the burden of establishing that Diop had consciously waived his constitutional rights and so, under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), Diop's statements could not be introduced by the government during its case in chief.
At the trial in December, 1975, Diop testified about what happened at JFK. Diop denied he had made inculpatory statements, and during the government's rebuttal Giaimo, Grabbatin, and Huber testified about the statements Diop had made to them. Diop's counsel did not object to Judge Dooling's charge to the jury. The jury convicted Diop on all four counts.
Diop argues that he raised the issue of whether his post-arrest statements were voluntary and that, Judge Dooling was therefore required, pursuant to 18 U.S.C. § 3501(a), to instruct the jury on voluntariness once his statements were admitted as part of the government's evidence. Diop further claims that the failure of Judge Dooling to give such a jury charge, even though not requested by Diop at the trial, is reversible error under United States v. Barry, 518 F.2d 342 (2d Cir. 1975).
A defendant's statements may constitutionally be used during the government's rebuttal case to impeach his testimony even though they cannot be used during the government's case in chief. Oregon v. Hass, 420 U.S. 714, 43 L. Ed. 2d 570, 95 S. Ct. 1215 (1975); Harris v. New York, 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971). But we are concerned here with the interpretation of a statute, not with the application of the fifth and fourteenth amendments. Judge Dooling's finding that the government had not shown that Diop's statement was voluntary for purposes of waiving his constitutional rights need not be conclusive for determining whether his statutory rights were violated.
The language of the statute*fn1 makes no distinction between a defendant's confession*fn2 in evidence during the government's case in chief and during the government's rebuttal case. So our problem here is to decide whether Diop raised "any issue as to voluntariness." 18 U.S.C. § 3501(a). While § 3501(b)*fn3 lists five specific factors and instructs the judge to take "into consideration all the circumstances surrounding the giving of the confession," the statute does not specify how the judge is to decide the threshold question of whether there is an issue.
"The notion of 'voluntariness' is itself an amphibian." Culombe v. Connecticut, 367 U.S. 568, 604-605, 6 L. Ed. 2d 1037, 81 S. Ct. 1860 (1961). It need not be the same under the fourth amendment as under the fifth amendment. Compare Schneckloth, Conservation Center Superintendent v. Bustamonte, 412 U.S. 218, 248-249, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) with Miranda, 384 U.S. at 468-469. Neither Harris, 401 U.S. at 224 nor Hass, 420 U.S. at 722, deals with a claim of involuntariness. United States ex rel. Wright v. LaVallee, 471 F.2d 123 (2d Cir. 1972), cert. denied, 414 U.S. 867, 94 S. Ct. 167, 38 L. Ed. 2d 87 (1973), deals with the issue of a confession under the sixth and fourteenth amendments and is not a case where there is a serious question about the voluntariness of the statements (id. at 127).
In Barry, 518 F.2d at 345, the defendant "claimed that the statements had been extracted by means of verbal threats and physical intimidation." Here Diop claims on appeal "that he did not fully understand the warnings and constitutional rights enumerated on a Miranda card shown to him; that he did not remember anyone reading from such a card; and denied that he had been told he had a right to a lawyer. Moreover, at the time of his arrest, appellant realized ...