United States v. Joseph Vanterpool

394 F.2d 697, 1968 U.S. App. LEXIS 7157

• Court: Court of Appeals for the Second Circuit
• Decided: April 29, 1968
• Docket: 31505_1
• Status: Published

Opinions

HAYS, Circuit Judge:

Appellant was convicted on two counts of selling heroin in violation of 21 U.S.C. §§ 173 and 174 after a trial before the Honorable Irving Ben Cooper and a jury.¹ Concurrent sentences of five years inprisonment on each count were imposed.

Appellant’s principal argument on this appeal is that his pre-arraignment statement to an assistant United States attorney should not have been admitted into evidence because the warnings he was given were inadequate under the standards set forth in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We hold that the warnings were adequate and affirm the judgment.

On February 28, 1966 appellant was arrested and placed in the Federal House of Detention. The next morning he was taken to the office of an assistant United States attorney for questioning. Before any effort was made to elicit information about the crime charged, the following colloquy took place:

“Q. * * * Do you understand what the charge is ? A. Yes.

Q. I want to advise you that you have a right to an attorney and to consult with a lawyer at this time. Do you have a lawyer ? A. No, I don’t have a lawyer.

Q. Do you have the money to hire a lawyer? A. No.

Q. The Commissioner who will fix bail in your case will also tell you about the steps that can be taken to assign a lawyer to you if you don’t have the money to hire one. Is there anyone you would like to talk to now to get legal advice or to find out whether one can be contacted ? A. There would be no way to reach them —just my wife.

Q. * * * I also want you to know that you don’t have to answer any of the questions that I am going to ask you. You may remain silent and not say anything. Anything you do say may be used against you at a later time as evidence. Do you understand everything I have explained to you? A. Yes.

Q. If you wish to remain silent, you can do so and your silence will not be held against you for any reason. Do you understand that? A. Yes.

Q. How far did you get in school? A. As far as the 11th grade.

Q. You have not had any difficulty understanding these things that I have explained then ? A. No.”

Appellant then admitted that he had formerly used narcotics, that he had sold narcotics “a couple of times,” and that he had met John Coursey, the agent to whom he was accused of selling heroin. However, he denied that he had sold narcotics to Agent Coursey.

At trial, the Government did not use or refer to appellant’s statement in the presentation of its direct case. The defense was that appellant had acted as an informer and that he was accused by the agents solely because he had refused to introduce them to one Juan. When appellant, testifying in his own behalf, attempted to corroborate his defense by stating that he had told the assistant United State attorney that he had acted only as an informer, the government sought to introduce the statement to impeach him. Judge Cooper admitted the statement into evidence over appellant’s objection and later charged the jury that it should be considered only on the issue of credibility.

The assistant United States attorney did not use the exact words of Miranda in warning appellant. The questioning took place before the Miranda decision was handed down.² However, the words of Miranda do not constitute a ritualistic formula which must be repeated without variation in order to be effective. Words which convey the substance of the warning along with the required information are sufficient.

Under Miranda before a suspect who is in custody can be questioned he must be “warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” 384 U.S. at 444, 86 S.Ct. at 1612.

Here appellant was informed that he had a right to remain silent and that anything he said could be used against him. He was told that he had a right “to consult with a lawyer at this time.” He was told of his right to have assigned counsel if he could not afford to hire one. When he indicated willingness to proceed without counsel he was again advised that he need not do so.

Since we have determined that the warnings were adequate under Miranda, we do not reach the question whether in the absence of Miranda warnings the statement would have been admissible to impeach appellant’s credibility. See United States v. Armetta, 378 F.2d 658, 661-662 (2d Cir. 1967); Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). However, we do not disagree with Judge Waterman’s analysis of that point.

We have examined the other points raised in appellant’s brief and find them to be without merit.

.Judgment affirmed.

1 . Almost two months after the conclusion of the trial Judge Cooper on his own motion set aside the conviction and ordered a new trial on the ground that appellant’s pre-arraignment statement should not have been admitted iuto evidence. A second trial was had before Judge Cannella and appellant was again convicted. On appeal, this court ruled that Judge Cooper lacked power to order a new trial on his own motion after the expiration of the five day period within which the parties had the right to make such a motion under Rule 33 as it then read. The case was remanded to Judge Cooper for sentencing on the first conviction. United States v. Vanterpool, 377 F.2d 32 (2d Cir. 1967).

2 . The Miranda rules apply in this case because the trial began after Miranda had been decided. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).