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United States v. Colon

decided: December 4, 1987.

UNITED STATES OF AMERICA, APPELLEE,
v.
JULIAN COLON, DEFENDANT-APPELLANT



Appeal from a conviction after a jury trial in the United States District Court for the Eastern District of New York (John R. Bartels, Judge) for the interstate transportation of stolen traveler's checks. On appeal, defendant contends, inter alia, that his inculpatory statement to an American Express investigator should have been suppressed because it was the result of an impermissible interrogation under Miranda and of an unreasonable delay in his arraignment in violation of Fed. R. Crim. P. 5(a) and its statutory counterpart, 18 U.S.C. § 3501(c). Affirmed.

Newman, Kearse and Winter, Circuit Judges.

Author: Winter

WINTER, Circuit Judge:

Julian Colon appeals from his conviction by a jury for the interstate transportation of stolen American Express traveler's checks in violation of 18 U.S.C. § 2314 (1982). Colon, an alien, was sentenced to a prison term of six years. The principal issue on appeal is whether Judge Bartels should have suppressed an inculpatory statement made by Colon while he was being driven to court for arraignment. Colon contends that his statement in Spanish to an American Express investigator was the result of an impermissible interrogation under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), and of an unreasonable delay in his arraignment in violation of Fed. R. Crim. P. 5(a) and its statutory counterpart, 18 U.S.C. § 3501(c) (1982). Colon also claims that the district court erred in permitting the introduction of a prior consistent statement and that its charge diluted the government's burden of proof. Although the delay in Colon's arraignment troubles us, and we comment upon it, neither Miranda nor Section 3501 is applicable when, as here, the inculpatory statement is spontaneous and did not result from interrogation or its functional equivalent. See 18 U.S.C. § 3501(d) (1982). We also reject Colon's other contentions and therefore affirm the judgment.

BACKGROUND

On the afternoon of Friday, May 30, 1986, about $65,000 in blank traveler's checks and several blank foreign exchange notes were stolen from the First Security Bank in Salt Lake City, Utah. Peggy Eaby, a teller, testified that Colon and Hernando Correa approached her cage where she kept blank traveler's checks in a box marked with an American Express label. Colon was wearing a red and white tee-shirt and a baseball cap. Correa took a foreign note and a U.S. note from his pocket and began to speak in a foreign language. Eaby, who could not understand him, went to find assistance. By the time she returned, the two men had left. About fifteen minutes later, she realized that the traveler's checks and bank drafts were missing.

American Express officials informed FBI Special Agent Michael Keeley in New York that they believed the robbers were among a party of five persons traveling under the name "Rodriguez" on a flight to Kennedy International Airport. After the plane arrived at about 1:00 a.m., Saturday morning, Keeley arrested Correa, Hector Valbuena and Hector Perez. Colon, still wearing the red and white tee-shirt and a baseball cap, and a woman, Rubia Martinez, were walking ahead of the other suspects when they too were stopped by Port Authority police assisted by American Express investigators. Martinez was carrying a package of traveler's checks underneath her dress when she and Colon were arrested. Colon and Martinez were advised of their Miranda rights in both English and Spanish. Colon denied knowing Martinez or the others in the group. However, Colon was carrying five airline tickets, all bearing the name "Rodriquez."

At about 1:30 a.m., the five suspects were taken to the Port Authority Police airport office for routine processing by state authorities, as is cautionary when federal agents make arrests at Kennedy International. An officer again advised them of their Miranda rights. In response, Colon stated that he did not wish to make any statements without the presence of an attorney.

Colon and the four others were taken to the Metropolitan Correction Center ("MCC") in Manhattan around 5:30 a.m. Sometime later, perhaps around 9:00 a.m., Agent Keeley took the five suspects to the FBI offices in Manhattan for the usual processing, including the acquisition of pedigree and arrest information with the assistance of a Spanish interpreter. Fingerprinting and photographing also proceeded with only one fingerprint board and one photographer available. All the suspects were kept at FBI offices until each had been processed. Because this took several hours and the magistrate assigned to Saturday duty in the Eastern District was not available after noon, the five suspects could not be arraigned on Saturday. The magistrate directed that the suspects be returned to the MCC and brought to court on Monday for arraignment.

On Monday, June 2, at about 9:00 a.m, Detective Michael James and American Express investigator Manuel Torres drove Colon from the MCC to the Eastern District courthouse in Brooklyn. During that car ride, Colon initiated a conversation in Spanish with Torres and told him that Martinez had nothing to do with the theft of the checks. Colon added that he had given the checks to Martinez after he had received them from Correa. At this point, Torres asked Colon only one question: whether Correa was the person in the yellow shirt, to which Colon responded, "yes." Torres then told Colon that he would bring Colon's cooperation to the prosecutor's attention.*fn1 Colon and the other four suspects arrived at the Eastern District courthouse at about 10:30 a.m. Arraignment of all the suspects was completed at 4:00 p.m.

At trial, additional evidence linked Colon to the crime and his travel companions. FBI Agent Thurman William, a government expert on fingerprints, identified five of Colon's fingerprints on the traveler's checks and bank drafts recovered from Martinez. The government also introduced two identification cards, bearing Colon's name and photograph, which were found in Martinez's purse. Finally, the government established that the serial numbers on the checks Martinez was carrying were the same as those on the checks stolen from the bank.

Discussion

We first consider whether the district court erred in not suppressing Colon's statement to Torres. Specifically, Colon contends that Torres' promise to bring Colon's cooperation to the prosecutor's attention turned the short car ride into "interrogation or its functional equivalent," and that the statement was the result of "extreme and unnecessary" delay in his arraignment.

It is undisputed that at the Port Authority office Colon explicitly refused to waive his Miranda right not to be questioned without the presence of counsel. Under such circumstances, any statements made to the police must be spontaneous and not the result of interrogation. See Arizona v. Mauro, 481 U.S. 520, 107 S. Ct. 1931, 1934, 95 L. Ed. 2d 458 (1987) (once an accused has "expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation . . . unless the accused himself initiates further communication, exchanges, or conversations with the police") (quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981)). Interrogation was defined in Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980), as both express questioning and its ...


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