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United States v. Carr

decided: October 10, 1978.

UNITED STATES OF AMERICA, APPELLEE,
v.
BENJAMIN CARR, JR., APPELLANT.



Appeal from a judgment of the District of Connecticut, T. F. Gilroy Daly, Judge, convicting defendant of his receipt as a convicted felon of firearms that had been shipped in interstate commerce, 18 U.S.C. § 922(h)(1). Affirmed.

Before Smith, Feinberg and Mansfield, Circuit Judges.

Author: Mansfield

Benjamin Carr, Jr. appeals from a judgment of the District of Connecticut, entered after a jury trial before Judge T. F. Gilroy Daly, convicting him of one count charging him with receipt as a convicted felon of firearms that had been shipped in interstate commerce, in violation of 18 U.S.C. § 922(h)(1),*fn1 for which he was sentenced to a term of 36 months pursuant to 18 U.S.C. § 924(a). He contends that the judgment should be reversed on several grounds, including inadequate inquiry of jurors to determine possible bias or prejudice, erroneous evidentiary rulings, failure to give a "missing witness" instruction, and the denial of a motion to suppress certain firearms seized from an automobile in which appellant was a passenger. Finding no merit in these contentions, we affirm.

The record, viewed most favorably to the Government at this stage, reveals overwhelming evidence of appellant's guilt. On August 17, 1976, he went to a pawn shop in New Haven, Connecticut, known as De Simone's Jewelers or the Chapel Loan Company, where he redeemed and took delivery of four shotguns and two rifles previously pawned by him. Later that day, John Nilsson, an appliance repairman in the vicinity, advised the New Haven police that he had observed three black men, one of them carrying an armful of rifles and another what appeared to be a musical instrument case, leave a building on Chapel Street, New Haven, with a black woman and dump the guns into the trunk of a dark reddish-brown automobile bearing Connecticut license No. HE 1229. These facts, including a description of the car and its occupants, were then broadcast in an alert to New Haven police cars. Earlier that day New Haven police had been told by their Department that appellant and his son were wanted for participating in a shooting on the previous evening and that warrants for their arrest were being requested.

New Haven Police Officer George Mingione spotted the automobile described in the alert, which was double-parked on Chapel Street. Police then closed in on the car, arrested appellant and his son on charges of reckless endangerment based on the previous night's shooting, removed the car keys from the ignition switch, opened the trunk and removed four shotguns and two rifles. The other occupants of the car were then arrested.

Appellant thereupon volunteered to Officer Mingione that the weapons belonged to him and that the others should not be arrested. After being advised not to make any further statement until he received Miranda warnings, which were then given to him, Carr stated that he understood his rights. He repeated that he was the owner of the firearms and had just taken delivery of them from De Simone's, which he asked the police to verify by taking him there. Appellant was again advised of his constitutional rights and taken at his request to De Simone's where Ernest Fiedler, an attendant in the pawn shop, confirmed appellant's statement that appellant had just taken the firearms out of pawn.

Upon being brought to New Haven police headquarters, where he read and signed a waiver-of-rights form, appellant again stated this time to Detective De Nuzzo, that his companions should not be arrested since the guns belonged to him. Questioning was terminated when appellant asked to talk with his lawyer. However, about an hour later appellant asked to see Officer Edward J. Fasano, whom appellant had on an earlier occasion assisted in recovering a gun, and volunteered that he (appellant) was the owner of the guns and had picked them up at a pawn shop before being arrested.

All six weapons seized from the automobile trunk had moved in interstate commerce and were operational. One of the shotguns, a Browning, bore the same serial number as one that had been redeemed by appellant at De Simone's, and one of the rifles, like one of those redeemed, was a .22 caliber.

The indictment, filed on September 7, 1977, charged appellant in one count with unlawful possession of four of the six weapons in violation of § 922(h) (1). Following an evidentiary hearing upon appellant's motion to suppress the weapons and his inculpatory statements made to the police, Judge Daly on March 9, 1978, filed an opinion denying the motions. United States v. Carr, 445 F. Supp. 1383 (D.Conn.1978). Judge Daly concluded that although the police did not have probable cause to arrest appellant for the previous evening's shooting incident, they did have probable cause to arrest him for unlawful receipt of firearms in violation of 18 U.S.C. § 922(h)(1) and to search the car in which he was riding for firearms. Accordingly, he ruled that the arrest and search were valid on the latter basis, regardless of the inadequacy of the former, citing LaBelle v. LaVallee, 517 F.2d 750, 754 (2d Cir. 1975), and thus rejected appellant's claim that the inculpatory admissions were tainted by an unlawful arrest or search. Judge Daly further held that since the admissions were either volunteered or given after full Miranda warnings, they did not violate appellant's Fifth Amendment rights and that they were given after waiver by appellant of his Sixth Amendment right to counsel.

At trial, in response to the overwhelming proof of his unlawful receipt of the firearms taken from the trunk of the car, appellant, testifying in his own defense, asserted that he neither touched nor took possession of the firearms but that they were taken from the pawn shop to the car by his son and nephew. He further denied making the incriminating admissions attributed to him by various witnesses. Appellant's son Dennis and his nephew, James Aiken, corroborated his version by testifying that the weapons had been received by Dennis, not appellant, on August 17, 1976. The jury, however, returned a verdict of guilty.

Discussion

Appellant first contends that the trial judge committed reversible error in refusing, after all of the defendant's peremptory challenges had been exhausted, to conduct a further inquiry of one juror, Mrs. Rhoda Podany, the wife of a Bridgeport Police Department detective, regarding her possibly having received information from her husband about the defendant, who had apparently been the subject of publicity years earlier arising out of a 1973 trial for bribery of a police officer and was known as "Fat Daddy." Appellant's suggestion that Mrs. Podany might have heard about the defendant from her husband was based on nothing but speculation. No publicity about the case or the defendant, much less any evidence that her husband knew anything about the defendant, was called to the court's attention.

When the jury was selected no members of the venire (which, having been drawn from Fairfield County, did not include anyone from New Haven, where appellant resides and where the crime occurred) recognized appellant, either in person or by name. Moreover, Mrs. Podany unequivocally stated in response to questioning by the court that her husband's position would not influence her thinking and that she could decide the case fairly and impartially in accordance with the court's instructions as to applicable law. The court, after the jury had been impanelled and sworn, gave the usual instruction that jurors were not to read anything about the case, not to discuss it with anyone and that they were to report to the court any attempted discussion with them by others.

Following a five-day delay before commencement of trial, defense counsel suggested to the trial judge that Mrs. Podany be excused on the ground that her husband might have disclosed prejudicial information about appellant. Judge Daly denied this motion but did inquire of the jurors generally whether anyone had tried ...


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