Augustine Guido appeals from conviction for possession and distribution of heroin. Appellant contends that incriminating statement made to police after repeated requests for counsel was obtained through functional equivalent of interrogation, and therefore should not have been admitted at trial. Affirmed.
FEINBERG, Chief Judge, KEARSE, Circuit Judge and RE, Chief Judge, United States Court of International Trade.*fn*
FEINBERG, Chief Judge: Augustine Guido appeals from a judgment of the United States District Court for the Southern District of New York, I. Leo Glassor J., following a jury trial. Guido was convicted of distribution of heroin, in violation of 21 U.S.C. § 841, and conspiracy to distribute heroin, in violation of 21 U.S.C. § 846. He was sentenced to eight years in prison, to be followed by ten year's special parole.
In April 1982, appellant was arrested in a friend's apartment by five DEA agents. The agents informed Guido that he was under arrest for having violated the federal narcotics laws, and read him his Miranda rights. Guido indicated that he understood his rights, and requested that he be allowed to call his attorney before leaving the apartment. The agents refused, but permitted him to ask a friend who was present to make the call for him. Guido was then taken to the Eastern District courthouse for processing. Guido asked during the ride what the arrest was about, and was again told that it was a narcotics arrest. He was also told that he should consider cooperation with the authorities in their investigation, and that he should discuss the possibility of cooperation with his attorney.
After reaching the courthouse, Guido was taken to an interview room for processing, which includes the taking of photographs, fingerprints, and a personal history. At this point, a DEA agent told Guido the arrest involved the sale of heroin. Guido asked the time and location of the sale and was told it occurred the previous summer in the area of Court Street in Brooklyn. Guido then asked if the sale took place at a candy store, and when the agent answered that it did, Guido exclaimed: "Oh Christ. Okay. I knew that one was trouble." According to Guido, this statement was obtained in violation of his Fifth and Sixth Amendment rights, and should have been suppressed prior to trial. The introduction of the statement into evidence forms the basis for Guido's appeal.
As an initial matter, we note that the incident at issue took place shortly after appellant's arrest and prior to his arraignment and indictment. Since the Sixth Amendment right to counsel attaches only after the filing of formal charges, appellant's incrimination statement, if protected at all, is protected by the Fifth Amendment rather than the Sixth. See United States v. Duvall, 537 F.2d 15, 20-22 (2d Cir.), cert denied, 426 U.S. 950, 49 L. Ed. 2d 1188, 96 S. Ct. 3173 (1976).
Guido's Fifth Amendment claim turns on whether his incrimination statement was volunteered or the product of interrogation. It is undisputed that when Guido was taken into custody, he requested the assistance of counsel before he made the statement at issue. Judge Glasser found at the suppression hearing that the defendant requested an attorney at least twice, and possibly as many as five times. Under the circumstances, it is clear that the arresting agents were not entitled to question Guido about the case. As the Supreme Court stated in Miranda v. Arizona, 384 U.S. 436, 474, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), "[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present." But it is also clear that voluntary statements made by a suspect who understands his rights are not prohibited:
The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. . . . Volunteered statements of any kind are not barred by the Fifth Amendment. . . .
Id. at 478; see also United States v. Carpenter, 611 F.2d 113, 117 (5th Cir.), cert. denied, 447 U.S. 922, 65 L. Ed. 2d 1114, 100 S. Ct. 3013 (1980) (spontaneous, unprovoked incriminating statement is admissible).
The standard for determining whether a statement is the product of interrogation is outlined in Rhode Island v. Innis, 446 U.S. 291, 300-01, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980) (footnotes omitted):
We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. This is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.
In Innis, a suspect volunteered to show police the location of a shotgun after hearing several officers discuss the possibility that children attending a nearby school for the handicapped might find the gun and accidentally injure themselves. The Court held that there was no "express questioning" and that the officers could not have known that the conversation was likely to trigger an incrimination response, since there was no suggestion that the officers were aware that Innis was "peculiarly susceptible" to such an appeal. Innis, supra, 446 U.S. at 302. Accordingly, the Court concluded that the officers' conversation did not constitute interrogation.
Appellant does not contend that he was subject to express questioning, but rather that he was subject to its "functional equivalent." He argues that the discussion of cooperation initiated by the agents while transporting him to the Eastern District was intended to elicit incrimination information and was inherently a form of interrogation. Appellant claims that his subsequent statements in the courthouse must be viewed in this context. At the very least, Guido ...