McLaughlin, Forman and Freedman, Circuit Judges. Freedman, Circuit Judge (dissenting).
McLAUGHLIN, Circuit Judge.
Defendant, Ruth, appeals from a judgment of conviction entered in the District Court for the District of New Jersey after a trial before the Court and a jury on an indictment charging a violation of Title 18 U.S.C. § 2312 in that he did wilfully and knowingly transport in interstate commerce a certain motor vehicle knowing the same to have been stolen.
At the defendant's trial the Government offered evidence to prove that a 1964 Mack Diesel tractor valued at over $14,000 and owned by Chemical Leasing Company was leased to Paragon Oil Company who in turn delivered it to one Martin E. Bostwick for the purpose of having some alterations made. Bostwick testified that he last saw the tractor on his premises in Linden, New Jersey on December 5, 1964, and discovered it was missing on December 7, 1964.
Edward Ger, a friend of the defendant, appeared as a Government witness. He testified that the defendant drove him from New Jersey to Brooklyn, Connecticut in mid November, 1964. The purpose of the trip was to enable Ger to meet with one August Nukala in order to discuss the possibility of using Nukala's I.C.C. authority. Ger further testified that while he was with Nukala and the defendant, the latter discussed renting space in Nukala's garage, and that he saw the defendant pay Nukala $100. as rent for one month.
Mr. Nukala was called as a Government witness and his testimony concerning the rental of garage space corroborated that of Ger.
The Government's case against Ruth consisted of testimony from the foregoing witnesses and others who placed the stolen tractor first in New Jersey and then in Brooklyn, Connecticut. The evidence relating the defendant to the actual transportation of the vehicle consisted of an oral statement given by the defendant to agents of the Federal Bureau of Investigation while the defendant was in custody in the Passaic County Jail on another charge.
In this appeal defendant urges error in the admission of this statement claiming that its admission violates his constitutional right to remain silent and his right to counsel. In addition the defendant urges error in the charge given to the jury.
Prior to admitting the statement in question the Court held a preliminary hearing in accordance with Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) at which time the Government presented the testimony of Charles Coe, a New Jersey State Trooper, and Walter J. Slaughter, an agent of the Federal Bureau of Investigation. Trooper Coe testified that Agent Slaughter advised the defendant of his right to remain silent, to have an attorney if he wished and also that any statement he gave would have to be voluntary with no threats, reward or promises of any kind. Agent Slaughter's testimony corroborated this. He stated, "When I first met him, I introduced myself as Special Agent, Federal Bureau of Investigation. Inasmuch as I never met him before, I also introduced Agent Snyder to him, and I immediately advised him he did not have to say anything to me, that anything he did say could be used against him in a Court of Law. He had a right to counsel, and if he couldn't afford one the Judge would get one for him, that anything he did say could be used against him in Court."
Agent Slaughter testified that the defendant refused to give a written statement before he consulted with an attorney but said that he would give an oral statement without implicating anyone else. Slaughter then questioned the defendant for approximately twenty or twenty-five minutes. Regarding the matter of counsel, Slaughter stated that the name of Edward D'Alessandro was mentioned as having previously represented the defendant, but the defendant indicated that he did not have the funds necessary to retain him in connection with the matter under investigation.
The defendant took the stand and denied that he was apprised of his rights by Agent Slaughter. He testified that the reason he made any statement was because the officers told him they had statements from his wife, her father and her uncle and that they had charges against these people. He explained that he made a statement in return for the officer's promises not to prosecute his wife and her relatives. The testimony of the officers contradicted that of the defendant. They denied threatening the defendant in any manner and specifically stated that they did not make any promises regarding the alleged charges referred to by the defendant.
On cross-examination, referring to the defendant's refusal to give a written statement prior to consulting with counsel, Slaughter stated:
"A. He said he would not give us a signed statement until he consulted with his attorney, Mr. D'Alessandro. I said would you speak to me then about the situation. He said, 'I'll tell you orally ...