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UNITED STATES v. MILLER

April 26, 1977

The UNITED STATES
v.
Barry E. MILLER, Defendant.



The opinion of the court was delivered by: COSTANTINO

COSTANTINO, District Judge.

On November 3, 1976, Barry Miller was arrested by F.B.I. agents in connection with the interstate movement of certain stolen antique oriental rugs. On that date, as well as the next day, he made various statements to the F.B.I. Subsequently, on November 22, 1976, a grand jury indicted Miller, charging him with violations of 18 U.S.C. § 2314 and 18 U.S.C. § 371. Miller now seeks to suppress the statements made to the F.B.I. on the grounds that (1) his statements were obtained in violation of his Fifth Amendment right against self-incrimination, and (2) that he did not waive his Sixth Amendment right to counsel.

 After holding a suppression hearing, the court makes the following findings of fact:

 (1) Barry Miller is a nervous, easily upset individual with a high sense of family involvement.

 (2) Miller suffers from back problems. At 12 o'clock the night before his arrest he had taken 2 Tylenol with codeine pills; he took 2 more along with a valium at 5:00 a.m. (approximately 2 1/2 hours before his arrest).

 (3) At 7:45 a.m. on November 3, two F.B.I. agents - McGoey and Mahaffey - woke up Miller, informed him that he was under arrest and advised him of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

 (4) At that time, as a result of his medication and sleepiness Miller was not completely alert. *fn1"

 (5) Miller's wife immediately contacted attorney William Spanakos who had represented Miller in a state court proceeding and informed Spanakos of the arrest.

 (6) Spanakos then spoke with Agent McGoey, advised the agent that he (Spanakos) was Miller's attorney, and instructed McGoey not to question Miller.

 (7) McGoey advised Spanakos that Miller would be taken to F.B.I. Headquarters in Manhattan for processing after which he would be arraigned in the Eastern District.

 (8) Spanakos then contacted Case Agent Charles Boling at F.B.I. Headquarters, advising Boling that he (Spanakos) was Miller's attorney and requested that Boling not question Miller. Boling replied that Miller would be processed and that if Miller "wanted to make a statement, I would be more than willing to listen." (Tr. 1.26).

 (9) In the meantime, Miller had gotten dressed and Agents McGoey and Mahaffey escorted him into a car for transportation to F.B.I. Headquarters. In the car Miller was given an advice of rights form which he read at approximately 8:25 a.m. Although he understood the rights themselves, it is not clear whether he understood the waiver provision and he refused to sign the form.

 (10) At that time Miller stated that he did not want to talk until he spoke with his attorney (Tr. 1.13)

 (11) During the trip to F.B.I. Headquarters one of the agents expressed to Miller the agent's view that Miller had a nice wife and family and indicated to Miller his surprise that Miller would get involved in trouble. This type of comment continued throughout the fingerprinting process.

 (12) Later at F.B.I. Headquarters, Miller was advised that if he cooperated, his cooperation would be made known to the United States Attorney, who would in turn bring it to the attention of the Judge, resulting in a low bond (or a personal recognizance bond) which would ultimately enable Miller to return to his wife and children.

 (13) After processing, at approximately 10-10:20 a.m. Miller was taken into an interview room for questioning. *fn2" Three or four F.B.I. agents were present.

 (14) In the room Agent Armstrong advised Mr. Miller that "I wanted to talk to him about the violation of interstate transportation of stolen property." (Tr. 1.67)

 (15) At various points during the questioning, Miller asked when his attorney would be present and was informed that he would be present ...


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