Appeal from a judgment of conviction entered after a jury trial in the United States District Court for the Southern District of New York (John M. Cannella, Judge). Appellant was convicted of two counts of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), one count of possession of a firearm during commission of a felony, in violation of 18 U.S.C. § 924(c)(2), and one count of impersonating a federal officer, in violation of 18 U.S.C. § 912. We reject his speedy trial, fifth, and sixth amendment claims but remand for further findings with regard to the admission of items seized in a search and his post-arrest statement.
Before: OAKES, WINTER and PRATT, Circuit Judges.
Takeo Matsushita appeals from convictions on two counts of possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1),(b)(1)(A)(1982), on e count of carrying a firearm during commission of a felony, 18 U.S.C. § 924(c)(2)(1982), and one count of impersonating a federal officer, 18 U.S.C. § 912(1982). He claims, inter alia, that the district court erred in denying motions to suppress certain post-arrest statements and physical evidence, that his right to a speedy trial was violated, and that he was deprived of his fifth and sixth amendment rights by the district court's refusal to allow him to assume this own representation late in the trial. The suppression questions involve ambiguities in the district court's findings, and we remand for clarification. We reject appellant's other claims.
In July, 1983, the Marriott Hotel in Miami, Florida, began receiving phone calls from a person identifying himself as "Inspector Scott Cunningham" of the United States Secret Service. The caller inquired about a metal suitcase in a Marriott storage room and threatened a federal investigation unless the suitcase was turned over to him. Matsushita had checked the suitcase in to the hotel's storage room in November, 1982. Hotel officials became suspicious about the "Cunningham" calls, and alerted federal authorities. The investigators discovered that the Secret Service did not employ and "Inspector Scott Cunningham." With the hotel's consent, the Secret Service recorded two subsequent calls from Cunningham. They also traced a number given by the caller to a New York City answering service and discovered a message for a "James Lee" to call a Mercedes dealership. The dealership was told to notify the authorities if "James Lee" appeared.
In early August, Matsushita, who was known to the dealership as "James Lee," arrived to pick up his car, which had been dropped off for service a few days earlier. The Secret Service was phoned, and several agents descended upon the dealership. After some initial questioning in which Matsushita identified himself as "Takeo Matsushita" and denied being "James Lee," he was taken into custody and brought to Secret Service headquarters.
At headquarters, an agent familiar with the "Scott Cunningham" calls recognized Matsushita's voice as that of the person making those calls. Matsushita was paced under formal arrest on the impersonation charge and given Miranda warnings. he admitted to having made the "Cunningham" calls. A search of his person incident to the arrest revealed a small quantity of cocaine and several pieces of false identification. Also, a loaded handgun was found in Matsushita's car during an inventory search. Matsushita admitted possession of these items. Later, after obtaining a search warrant, agents searched Matsushita's apartment and found approximately four kilograms of high-purity cocaine, $7,800 in cash, sixteen guns, and assorted narcotics paraphernalia. They also found a recording of the "Cunningham" calls and additional pieces of false identification.
Prior to trial, Matsushita moved to suppress all statements made by him, the cocaine found on his person at the time of arrest, the gun found in his car, and the evidence seized during the search of his apartment. Judge Kram, who handled the pretrial proceedings, (Judge Cannella presided at the trial), found that Matsushita had been in custody from the time of his initial seizure at the Mercedes dealership. She thus suppressed all statements made by Matsushita before he was given his Miranda warnings, which took palace at Secret Service headquarters following his formal arrest. She refused to suppress the items found on Matsushima's person, however, finding that they were products of a valid search incident to arrest, untainted by the inadmissible pre- Miranda statements. Finally, she found that the gun taken from the car and the post- Miranda statements were also admissible, as well as the items from his apartment.
The pretrial period was marked by long delays and by several changes in defendant's counsel. Matsushita's trial did not begin until June 10, 1985, more than twenty-two months after his arrest. During this time Matsushita was represented by at least five and perhaps six different attorneys, not including present appellate counsel. The changes of attorney caused some delay, as defendant needed time to find a new attorney each time he dismissed one. A court-ordered competency exam also delayed defendant's trial for a substantial period, as did the flurries of pretrial motions filed by defendant.
The government rested its case on June 12. The next morning, the defense sought to call a witness, but the court excluded his testimony as irrelevant. Defense counsel stated that he planned to call no more witnesses. The court discussed with counsel the requests to charge, and, after the jury had been brought back in, the defense formally rested. At that point, Matsushita sought to exercise his right to represent himself. The court denied this request as untimely. Matsushita persisted in his objections, and the dispute was adjourned to the robing room. Further discussions ensued, and the defendant returned to the courtroom under instructions not to interrupt again in the jury's presence. Shortly after the prosecutor began her summation, however, Matsushita interrupted and demanded that he be allowed to present witnesses. He was found in contempt and quieted, and the summation continued. The jury convicted on all counts.
Matsushita now appeals. he claims, inter alia, that: (i) the court erred in refusing to suppress certain physical evidence, (ii) the court erred in refusing to suppress his post- Miranda statements; (iii) the lengthy pretrial delay violated his right to a speedy trial; and (iv) his fifth and sixth amendment rights were violated by the court's refusal of his request to testify and to present witnesses in his behalf. We address these issues seriatim.