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United States v. Cummiskey

February 22, 1984

UNITED STATES OF AMERICA
v.
PATRICK CUMMISKEY, APPELLANT; UNITED STATES OF AMERICA V. MICHAEL CLARK, APPELLANT



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Author: Gibbons

Before: GIBBONS and SLOVITER, Circuit Judges and CALDWELL, District Judge*fn*

Opinion OF THE COURT

GIBBONS, Circuit Judge:

Patrick Cumminskey and Michael Clark appeal from sentencing orders following their convictions for violations of the Victim and Witness Protection Act of 1982, 18 U.S.C. § 1513 (1982), and for conspiracy to violate the Act, 18 U.S.C. § 371 (1982). These appeals raise two principal issues for our consideration: whether the district court improperly admitted comments on the defendants' silence, in violation of Doyle v. Ohio, 426 U.S. 610 (1976); and whether the indictment properly charged offenses under sections 1513 and 371.

I.

Cumminskey and Clark assert that remarks made by the prosecutor during trial and in summation to the jury constituted impermissible comments on the defendants' silence. At trial the government advanced the theory that Clark and Cummiskey threatened the life of Michael Cosmo in retaliation for Cosmo's testimony given at a criminal trial. Cosmo testified that after learning that Clark and Cumminskey "were going to get [him]," Clark App. at 37, he sped off in a truck. Both defendants followed in a car. At one time Clark and Cummiskey forced Cosmo's truck to a halt. Cummiskey threatened Cosmo's life; Clark brandished a weapon at him. Cosmo again sped off, exchanging gunfire with Cummiskey's pursuing car. Shortly thereafter, Cosmo testified, he spotted a Philadelphia patrol car and informed two police officers that "those two guys are after me." Id. at 41. The officers sped after Cummiskey and Clark and arrested them.

At no time during trial did the government or either defendant establish the time at which the defendants had been given the warning prescribed by Miranda v. Arizona, 384 U.S. 436 (1966), that a person in custody has the right to remain silent. Clark did not testify at trial. Cummiskey testified that he and Clark were pursuing Cosmo because they were concerned for his welfare. According to Cummiskey, Cosmo was shooting at their pursuing car for no apparent reason. Both men were mystified, Cummiskey stated, that Cosmo should have been shooting at them. Clark App. at 202-04. On cross-examination, Cummiskey was asked whether he had told this same story to the arresting officers. The following colloquy ensued:

CUMMISKEY: I didn't say anything to the officers when we got arrested on the scene there; I didn't say a word.

Q: You weren't surprised at all . . . that they arrested you [although Cosmo was shooting at you]?

A: Sure I was.

Q: But you didn't say a thing, did you.

Counsel FOR CUMMISKEY: Your Honor, ...


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