United States v. Curry

• Decision Date: 22 December 1965
• Docket Number: Docket 29000.,No. 365,365
• Citation: 358 F.2d 904
• Parties: UNITED STATES of America, Appellee, v. Peter Columbus CURRY, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

358 F.2d 904 (1965)

UNITED STATES of America, Appellee, v. Peter Columbus CURRY, Jr., Defendant-Appellant.

No. 365, Docket 29000.

United States Court of Appeals Second Circuit.

Argued March 4, 1965.

Decided December 22, 1965.

As Modified on Rehearing April 11, 1966.

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Jerome C. Ditore, Asst. U. S. Atty., Eastern Dist. of New York (Joseph P. Hoey, U. S. Atty., Eastern Dist. of New York, Brooklyn, N. Y., on the brief), for appellee.

Walter R. Mansfield and Robert F. Morten, New York City (Peter W. Mitchell and Roger J. Hawke, New York City, on the brief), for defendant-appellant.

Before LUMBARD, Chief Judge, and MOORE and HAYS, Circuit Judges.

LUMBARD, Chief Judge:

Peter Columbus Curry's appeal from his conviction by a jury in the Eastern District of New York for bank robbery, in the course of which one of his fellow-robbers shot and killed a bank guard, and from his sentence to life imprisonment, raises four questions: (1) Whether it was error to allow the government to use, for the purpose of impeaching contrary testimony given by Curry in his own defense, Curry's statements made to FBI agents prior to his arraignment, which statements had been suppressed from use by the government as direct evidence; (2) Whether or not 18 U.S.C. § 2113(e), which leaves to the jury whether a defendant found guilty of felony-murder should suffer the death penalty, as applied in the instant case is repugnant to the Fifth Amendment; (3) Whether the method of selecting the jury panel was in violation of Curry's rights because it systematically excluded Negroes from the panel; and (4) Whether the district court erred in denying, after a hearing, a motion for a new trial in which defendant alleged that one government witness had recanted and that the testimony of another government witness could be materially impeached. We find all these allegations of error to be without substance and affirm the conviction.

Curry was first tried before Judge Matthew T. Abruzzo and a jury, but the Judge's illness caused a mistrial during the government's case. A second trial, conducted from November 4 to December 22, 1963, before Judge John F. Dooling, Jr., resulted in the judgment of conviction for violation of 18 U.S.C. §§ 2, 371, 2113(a), (d) and (e) from which Curry appeals.

The government's proof amply supports the jury's verdict that Curry was guilty of participating in the robbery of $32,763.43 in cash from the Lafayette National Bank in Brooklyn on the morning of December 15, 1961, together with Albert Frederick Nussbaum and Bobby Randell Wilcoxson, who shot and killed a bank guard.

Curry, Nussbaum and Wilcoxson had met several years prior to 1961 while serving sentences at the Federal Reformatory in Chillicothe, Ohio. When Curry was released from a Georgia prison in October 1961, he visited Nussbaum in Buffalo, using money Nussbaum had sent him. He later came to Brooklyn, where Nussbaum continued to send him money. Wilcoxson joined Curry in New York and the two drove around Long Island searching for a likely bank to rob. Nussbaum came to New York and, commencing November 24, 1961, all three talked about robbing a bank. They finally fixed upon the Lafayette Bank at Utica Avenue and Kings Highway, Brooklyn. The trio made observations regarding the layout of the bank, the movement of its employees, and the delivery of money to it, and they planned their disguises and a getaway route. They also stole an Oldsmobile for a getaway car.

Nussbaum and Wilcoxson picked up Curry near his home at 7:00 A.M. on December 15, and Nussbaum attached a black crepe hair moustache to Curry's upper lip. Curry and Wilcoxson went to the bank in the Oldsmobile; Curry put on a red corduroy cap and took two revolvers from the supply of weapons Nussbaum had provided. Nussbaum parked across the street from the bank in his Ford station wagon, which was equipped with a walkie-talkie transmitter and receiver. Wilcoxson, wearing a raincoat and dark glasses, entered one bank entrance and killed the bank's armed guard with four shots from a Thompson .45 calibre submachine gun. Curry came in from another entrance, cowed the tellers with two loaded revolvers and scooped up cash in two of the tellers' booths. Despite a gun battle with a uniformed policeman, Wilcoxson and Curry escaped out the Utica Avenue exit to the Oldsmobile and sped away. By means of the walkie-talkie Nussbaum picked them up when they abandoned the Oldsmobile. Nussbaum and Wilcoxson went back to Buffalo and Curry returned to his Brooklyn home. Later Curry received part of his one-third share of the $32,000 loot.

Nussbaum and Wilcoxson, both white, pleaded guilty and testified in detail to the part played by Curry, a Negro, in the planning and execution of the robbery. Several other witnesses identified Curry as the Negro with the two revolvers. In addition, Valerie Brunner, who had been Curry's fiancee at the time, testified that Curry admitted that he helped rob the bank and gave other testimony corroborating Curry's contacts with Wilcoxson shortly before the robbery.

When Curry testified, he admitted his relationship with Wilcoxson and Nussbaum and his participation in the planning of the robbery and in an abortive attempt to rob the same bank on December 8. He even admitted meeting Wilcoxson and Nussbaum on the morning of December 15, but he said that a Negro named "Streets" was with them and that he, Curry, left them at 7:30 A.M. and did not go to the bank. Curry also named three others, Robert Martin, Deroy Pettit and Fred Cunningham, who he said took part in the planning of the robbery.

I. Curry's Statements to the FBI.

Arrest warrants for Curry, Wilcoxson and Nussbaum were secured from United States Commissioner Shiffman between 6:00 and 7:00 P.M. on February 12, 1962. Agents Long and Putz of the FBI, accompanied by New York City Detective Lesson, arrested Curry at the home of his mother and stepfather in Brooklyn when he arrived there from Washington, D. C., at 4:50 A.M. on February 13, 1962. Curry was warned that he need make no statement, that what he said could be used, and of his right to consult a lawyer. Agent Foley joined them minutes later. It took a few minutes to get to the agents' car, and thirty-five minutes to drive to FBI headquarters at 201 East 69th Street, Manhattan, where they arrived at about 5:30 A.M.

Curry was brought immediately to a ten by twelve foot interviewing room containing two desks, four or five chairs, one filing cabinet, and one window facing east opposite the door. The room was occupied by Curry, Agents Foley, Putz and Keefe, and Detective Lesson.¹ Curry was immediately "strip-searched"; he disrobed completely and all his belongings were given a thorough examination. He then dressed. After the search and before Curry made any statement, Agents Foley and Putz again advised him that he need make no statement, that anything he said could be used in a court against him, and that he could have legal counsel. Curry replied that he wanted to call a lawyer and that he had a lawyer. Foley offered him the use of a telephone on the desk, and Curry then replied, "I don't have an attorney."

The first forty-five minutes of the interview centered around Curry's background: his parents, family, schooling, and personal history. Agent Foley was the only one to question. At 6:32 A.M. Curry was served coffee.

The interview then turned to the bank robbery itself. Foley explained why they thought that Curry had been involved and asked if Curry had anything to reply. Curry denied taking part in the robbery. The agents brought the names of Wilcoxson and Nussbaum into the questioning, explaining that the FBI knew that Curry had met them in prison and that Wilcoxson had called Curry's house from the New York Statler Hotel. Curry still denied taking part in the robbery and denied that he knew Wilcoxson and Nussbaum. Apparently most of the questions during this period were asked by Agents Foley and Putz. During this time Curry was told something along the lines of "Be truthful and you will be better off," but there was no elaboration as to how he would be "better off." At 8:16 A.M. Curry was again given coffee; he declined the offer of a roll.

The questioning then turned to locating Wilcoxson and Nussbaum. They were still at large at the time, had committed other robberies prior to the Lafayette Bank robbery, and in fact later committed at least three bank robberies in Philadelphia and in suburbs of Pittsburgh in 1962. Curry was shown pictures of himself, Nussbaum and Wilcoxson which the New York Daily News had published the prior night because of the issuance of the arrest warrants. Curry then admitted that he knew them, but he continued to deny having taken part in the robbery. Agent Foley, in questioning Curry, outlined the general scheme of the robbery during this period, but, according to his testimony, did not go into explicit detail.

At 9:47 A.M., Curry was taken to the bathroom by Agents Keefe and Putz and was then photographed. Curry claims that four agents took him into the bathroom and, because they appeared set to beat him, he told them that he would confess. Both Keefe and Putz testified that no such threats were made and that Putz, in the men's room, merely pointed out some of the inconsistencies in Curry's statements. At about this time, the agents became convinced that Curry was ready to disclose what he knew about the robbery.

At 9:56 A.M. Curry and the two agents returned to the interview room and the questioning continued. At 10:00 Curry stated, "Yes, I was in on it," and proceeded to admit his part in the robbery. Agent Foley took the information down in narrative form; after he finished his story, Curry read the statement for about ten minutes. He then signed it at 11:18 A.M. after writing at the end a sentence dictated by Foley that the statement was true and correct.

Meanwhile, Commissioner Shiffman had been advised of...