United States v. Thomas Duffy

479 F.2d 1038, 1973 U.S. App. LEXIS 10055

• Court: Court of Appeals for the Second Circuit
• Decided: May 7, 1973
• Docket: 757, Docket 73-1081
• Status: Published

Opinions

PER CURIAM:

This is an appeal from a judgment of the United States District Court for the Eastern District of New York affirming a judgment of the Magistrate’s Court for that district which found the appellant guilty of engaging in a business without a permit at the Fire Island National Seashore in violation of 36 C.F.R. § 5.3.¹ Appellant was sentenced to a fine of $250 the execution of which was stayed pending this appeal.

Appellant concedes that he was engaged in “commercial fishing” (as the Magistrate found) when he was arrested but he argues that commercial fishing is not prohibited at the Fire Island National Seashore under 36 C.F.R. § 5.3. Appellant argues that the prohibition in 36 C.F.R. § 5.3 against engaging in a business is superseded by 36 C.F.R. § 2.-13 (dealing generally with fishing in national parks).

We hold that the Magistrate and the District Court correctly found that appellant’s activity, commercial fishing, is prohibited by 36 C.F.R. § 5.3 and that that provision is not superseded by the general provisions applicable to fishing. It is the business activity, not the fishing, which the regulation prohibits.

Applicant next claims that his Fifth and Sixth Amendment rights were violated by the admission of certain statements of his at his trial before the Magistrate. After federal rangers had given appellant a citation for violating 36 C.F.R. § 5.3, he was taken into custody by members of the Suffolk County police who believed that an active warrant was out for him for violations of certain state vehicle and traffic laws. On the way to the police station — after being advised of his Miranda rights and waiving them — the appellant made statements to the police dealing with his fishing activity which later were admitted against him at his trial on the federal charge. We believe that appellant’s statements were not the product of “interrogation” within the meaning of the Miranda doctrine but were volunteered by appellant, see United States v. Gaynor, 472 F.2d 899 (2d Cir. 1973).

As to the claim of right to the presence of counsel at the “interrogation,” the issuance of a National Seashore Ranger’s citation to appellant could hardly be called the initiation of a “formal adversary criminal proceeding” within the meaning of United States ex rel. Robinson v. Zelker, 468 F.2d 159 (2d Cir. 1972).

In spite of the absence of merit in appellant’s substantive contentions, we must remand the case for resentencing because the grounds upon which the sentence was based are unlawful. In regard to appellant’s sentence, the Magistrate said:

“The 250.00 fine levied on the defendant hardly will cover the costs of this proceeding which the defendant’s three associates saved the Government when they pleaded guilty. Besides the time taken up at the trial including that of the Magistrate, Court Reporter paid for by the Government, the Prosecutor, Legal Aid Society (assigned to defendant at Government expense) and an appeal including that of the District Judge, Court Reporter, Prosecutor and Legal Aid Society plus the cost of the transcript of the minutes of both proceedings, we have the time of the Government witnesses attending in court to testify. Accordingly no part of the fine is remitted.”

It thus appears that the Magistrate imposed the relatively heavy fine on Duffy as a consequence of his refusal to plead guilty. This action was, of course, improper.

We therefore remand this case to the Magistrate for reconsideration of appellant’s sentence.

1 . 36 C.F.R. § 5.3 reads as follows:

Engaging in or soliciting any business in park areas, except in accordance with the provisions of a permit, contract, or other written agreement with the United States, except as such may be specifically authorized under special regulations applicable to a park area, is prohibited.