508 F.2d 1171 (2nd Cir. 1974), 1234, United States v. Boston

Docket Nº:1234, 1235, Dockets 74-1451, 74-1491.
Citation:508 F.2d 1171
Party Name:UNITED STATES of America, Appellee, v. John Matthew BOSTON and Ernest Moore, Appellants.
Case Date:December 12, 1974
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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508 F.2d 1171 (2nd Cir. 1974)

UNITED STATES of America, Appellee,

v.

John Matthew BOSTON and Ernest Moore, Appellants.

Nos. 1234, 1235, Dockets 74-1451, 74-1491.

United States Court of Appeals, Second Circuit

December 12, 1974

        Argued Aug. 14, 1974.

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        Stephen M. Behar, Asst. U.S. Atty., E.D.N.Y. (David G. Trager, U.S. Atty., E.D.N.Y., Raymond J. Dearie, Asst. U.S. Atty., of counsel), for appellee.

        David W. McCarthy, Mineola, N.Y. McCarthy & Dorfman, Mineola, N.Y., of counsel), for appellant John Matthew Boston.

        Gustave Weiss, New York City, for appellant Ernest Moore.

        Before OAKES, Circuit Judge, and FRANKEL and KELLEHER, District judges. [*]

        FRANKEL, District Judge:

        Appellants, John Matthew Boston and Ernest Moore, were found guilty by a jury on April 5, 1974, of robbing a federally insured bank, 18 U.S.C. 2113(a), and of employing deadly weapons in the commission of that robbery, 18 U.S.C. 2113(d). Both received consurrent sentences of 20 years in prison. Upon the ample evidence, and for the reasons hereinafter outlined, we overrule the several grounds of appeal and affirm the convictions.

        1. The Robbery

        From the evidence for the prosecution in the five-day trial (no evidence being offered by defendants), the jury was entitled, perhaps substantially compelled, to find the following facts:

        Three men, the two appellants and Daniel Washington, 1 robbed the Baisley Park (Queens, New York) branch of the National Bank of North America on the morning of June 2, 1971. The robbery lasted about ten minutes, the perpetrators insisting that the vault be opened after they had robbed the tellers' stations. More than $185,000 was stolen, including $1,000 in twenty dollar bills whose serial numbers had been recorded before they were placed in the vault as 'bait money.'

        The two key witnesses to the robbery were a bank guard, John Jackson, and the branch manager, Joseph Dente. Dente was ordered by Boston to open the vault; he spent three to five minutes with Boston and Moore in the vault area. Jackson was searched by Moore and observed Boston for five minutes during

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the robbery. After the robbers fled, Jackson chased them in his own car and was able to record the license plate number of the getaway car. Jackson, Dente, and other witnesses to the robbery were interviewed within one hour of the robbery by New York City Police Officers and by special agents of the F.B.I. A composite description of the three suspects was broadcast, as was a description of the getaway car. At the trial David Moore testified that he had loaned the getaway car to his brother, appellant Ernest Moore, before the robbery. David Moore explained in his testimony that the vehicle had been loaned to him by his employer a few days earlier.

        Other evidence of appellants' guilt is either immaterial to the points on appeal or will emerge as those points are treated in later portions of this opinion.

        II. The Arrest of Appellant Boston

        Bank guard Jackson, who chased the appellants in his own car until he lost sight of their vehicle 'a good distance from the bank,' was able to give the police a description of the getaway car and its license plate number. The getaway car was located later on the day of the robbery at a parking lot in Queens, New York, and surveillance was established by the F.B.I. At 2:30 the following morning, a 'gypsy' taxicab approached the area where the car was parked. The driver, appellant Boston, got out and walked around the area. While Boston was thus engaged, co-defendant Washington left the taxi and proceeded to the vicinity of the getaway car. Washington looked into the car, threw something at the windshield, and returned to the taxi. Boston, having returned to the driver's seat, turned the headlights of the taxi on and then off, proceeded down the block, and made a U-turn. The F.B.I. agents intercepted the cab on its way back and forced it to stop.

        The agents ordered Boston to get out of the cab and to identify himself. He gave a false name, after which the agents asked for identification. Boston gave them his wallet, which contained a driver's license with his true name on it. Boston then admitted his identity, and both he and Washington were placed under arrest.

        Boston claims that the F.B.I. agents at the scene of the getaway car did not have probable cause either to stop the taxi he was driving or to arrest him. Both contentions are unsound. The agents had been rpovided with a description of the getaway car and its license plate number. They also had a composite description of the robbers, including their race, height, weight, approximate age, and hairstyle. The appearance of the two men at the scene in the dark of the morning, evidently resembling the descriptions enough to make this a cogent factor in Judge Costantino's determination, followed by their strange and deeply suspicious behavior around the getaway car, justified the stop following the U-turn. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). After Boston had falsely identified himself, his identification papers revealed that his true name was one the officers had received from an informant who had given them two of the robbers' names. The other name from the informant was Washington, the other arrestee. 2 Adding these dramatic facts to those preceding the stop, there was plainly ample basis for the arrest.

        III. Appellant Boston's Confession

        At the time of his arrest on the morning of June 3, appellant Boston was searched and $1,190 in cash was found in his possession. He was placed in an F.B.I. car, informed that he was being arrested for the June 2 robbery, and twice advised of his rights. At F.B.I. headquarters he was shown an 'Interrogation

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Advice of Rights' form, which he refused to sign. He insisted that he was innocent and claimed that he had been hired by Washington to drive him around New York City. Boston then supplied the agents with his address, which was the apartment of his sister, Stephanie Baker.

        Four agents were dispatched to the apartment and, after a search of the premises (a subject separately discussed below), they uncovered $80,000 in cash, including $800 in bait money, three National Bank of North America money wrappers, and one of the bank's money straps, which was later found to have Boston's fingerprint on it.

        The results of the search were relayed to Boston, who then admitted his participation in the robbery to a special agent but would not identify the third participant. Boston later repeated his confession to an Assistant United States Attorney.

        Boston now claims that the circumstances surrounding his confession violated his Fourth and Fifth Amendment rights and that his confession should not have been admitted into evidence. We cannot agree. No question is raised as to the trial court's finding that Boston was given proper warnings as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He contends, however, that his refusal to sign a written waiver shows he did not waive his right to remain silent. Boston does not urge that the absence of a written waiver automatically bars the admission of a confession. It is clear, in any event, that a written waiver is not required. See, e.g., United States v. Cassino, 467 F.2d 610, 620 n. 30 (2d Cir. 1972), cert. denied, 410 U.S. 928, 93 S.Ct. 1363, 35 L.Ed.2d 590 (1973); United States v. Speaks, 453 F.2d 966, 968-969 (1st Cir.), cert. denied,405 U.S. 1071, 92 S.Ct. 1522, 31 L.Ed.2d 804 (1972). On the order hand, Boston argues, correctly, that the refusal to execute a written waiver may be taken as an indication that no waiver was intended or freely given. Granting this, the record before us fully sustains the finding of waiver. Boston knew his Miranda rights and exercised them until he was confronted with the results of the search of his apartment with the realization that he had involved his sister in his illegal pursuits. His decision to talk after that was found by the trial court, 'on the basis of the demeanor of the witnesses and the testimony adduced,' to reflect no departure from the requirements of Miranda. The finding appears from the record to be fully justified. It is, at any rate, not clearly erroneous. It must be sustained. United States v. D'Avanzo,443 F.2d 1224 (2d Cir.), cert. denied, 404 U.S. 850, 92 S.Ct. 86, 30 L.Ed.2d 89 (1971). 3

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        IV. Photographic Identifications

        The third claim on this appeal, urged by both appellants, is that their rights to due process were prejudiced by the use, nature, and timing of photographic identifications. The contention arises from the following facts: Two days after the robbery a local newspaper published a story concerning the arrest of Boston and Washington, along with a picture of Boston. A bank secretary, Hattie Moss, brought a copy of the story into the bank and showed it to Dente. At the hearing before Judge Rayfiel 1971 Moss testified that she had also shown the story to Jackson. At that time Jackson stated that he had not seen the story or the accompanying photograph. At the hearing in 1973 before Judge Costantino, it was stipulated that Moss did not remember in 1973 having shown the story to Jackson but 'she assumed that she showed it to John Jackson as she had shown it to others.' Jackson testified before Judge Costantino that he had not seen the story.

        An F.B.I. agent went to the...

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