Appeal from a judgment of the United States District Court for the Southern District of New York, Carter, J., convicting appellant, after a jury trial, of one count of possessing and concealing counterfeit money in violation of 18 U.S.C. § 472 (1982). Appellant was sentenced to four months imprisonment and three years probation; as a special condition of probation, appellant was ordered to pay $1,000 restitution.
Meskill, Cardamone and Pratt, Circuit Judges.
This is an appeal from a judgment of the United States District Court for the Southern District of New York, Carter, J., convicting appellant Joseph Burger, after a jury trial, of one count of possessing and concealing counterfeit fifty dollar bills in violation of 18 U.S.C. § 472 (1982). Burger was convicted on the last count of a four count superseding indictment. Count One charged Burger, Carmine Agnello and Dominick Marino with conspiring to pass and utter counterfeit fifty dollar bills in violation of 18 U.S.C. § 371 (1982). Counts Two and Three charged Agnello and Marino, respectively, with passing and uttering counterfeit fifty dollar bills in violation of 18 U.S.C. § 472. The only conviction resulting from the joint trial was that of Burger on Count Four. He was sentenced to four months imprisonment and a three year probation term. As a special condition of probation, Burger was ordered to pay $1,000 restitution to Yonkers Raceway. Burger is presently free on bail pending the outcome of this appeal.
We vacate the judgment and remand for further proceedings consistent with this opinion.
Pursuant to an arrest warrant, Burger was arrested by Secret Service agents on September 7, 1983, at approximately 5:30 p.m., in connection with the receipt by Yonkers Raceway on September 2, 1983 of twenty-one counterfeit fifty dollar bills. He was apprehended while riding in a car with his employer and co-defendant, Agnello and Agnello's cousin, Frank Spears. The three men were taken in separate cars to the Secret Service field office at the World Trade Center; only Burger and Agnello were arrested.
Secret Service agents began questioning Burger at approximately 7:30 p.m. At about 10:00 p.m. he signed a statement that he purchased $1,200 in counterfeit money from a friend named "Cue Ball" and that he took the bogus money to Yonkers Raceway on September 2. What happened during the interval between Burger's arrest and his confession is in dispute. At the hearing on the motion to suppress his statement, Burger maintained that immediately following has arrest he was taken to Fresh Meadow Park in Queens where he was kicked, choked and beaten in broad daylight by the two arresting agents. He claimed that two other agents arrived in a black Cadillac and joined the altercation and that one of them challenged him to a fight. He stated that he told the agents repeatedly that he did not want to speak to them until he consulted his attorney but his protests were ignored.
Burger also maintained that his abusive treatment continued after he arrived at the Secret Service office.He stated that he was not read his rights and that the officers continued to question him despite his demand to see a lawyer. He claimed that the officers threatened to harass his grandmother. He asserted that four officers took turns beating him until he signed a confession, which he did only to end the ordeal.
Burger's account was supported by Spears, who testified at the suppression hearing that the room in which he was placed at the Secret Service office was adjacent to the one in which Burger was held. Spears stated that he could hear screams emanating from the next room. He testified that while left alone, he accidently turned off the light in the room and was able to see Burger, who was handcuffed to a bar on the wall, being questioned and punched in the abdomen by several agents. He stated that he was able to name Jan Gilhooly as one of the agents beating Burger because Gilhooly subsequently gave him a card and printed his name thereon. However, Spears was unable to describe Gilhooly's appearance or identify him at the hearing and Gilhooly's handwritten name on the card was misspelled.
At the suppression hearing, the government presented an entirely different account of the facts following Burger's arrest. Agent Ogilvie, one of the arresting officers, testified that he promptly advised Burger of his rights and that Burger indicated that he wanted to talk without the presence of an attorney. Agent Ogilvie stated that neither he nor Agent Saez, the other arresting officer, struck, kicked or threatened Burger at any time. He testified that they drove directly from the point of arrest to the Secret Service office and that they did not stop at Fresh Meadow Park.
Agent Lynch testified that he and Agent Sira interviewed Burger after he arrived at the Secret Service office. He stated that Agent Sira informed Burger of his rights and that he waived them voluntarily. He stated that Burger's oral statements were reduced to writing and that Burger read and signed the written statement. He said that Burger never complained of mistreatment by the arresting agents and that he showed no visible signs of abuse. Agent Lynch testified that he was with Burger continuously after his arrival at the office with the exception of several very brief intervals and that no other agents ever entered the interview room. He testified that Burger was not threatened or choked. He confirmed that the interview room contained a one-way mirror which would not yield a view into the next room unless the viewing room was darkened, but he stated that he believed that the light was on continuously in the next room.
Agent Gilhooly testified that he did not participate in Burger's interview and that he did not threaten, beat, kick or choke Burger. Furthermore, Agent Gilhooly stated that he did not participate in Burger's interview and that he did not threaten, beat, kick or choke Burger. Furthermore, Agent Gilhooly stated that he did not sign a card or give one to any individual that evening.
Judge Carter heard testimony that after the questioning concluded and Burger signed the statement, Lynch and three other agents drove to Queens in an attempt to locate "Cue Ball." Their efforts were unsuccessful. Burger was taken to the Metropolitan Correctional Center (MCC) in New York for lodging overnight pending arraignment the following day. The government introduced the testimony of George May, Administrative Assistant to the Manager of the MCC, who stated that Burger indicated on his intake form that his medical condition was "good." May testified that Burger bore no signs of physical abuse and photographs taken at the time of ...