U.S. v. Woods

• Decision Date: 03 January 1980
• Docket Number: Nos. 78-5206,78-5207,s. 78-5206
• Citation: 613 F.2d 629
• Parties: 5 Fed. R. Evid. Serv. 797 UNITED STATES of America, Plaintiff-Appellee, v. Charles Frederick WOODS, Defendant-Appellant, and UNITED STATES of America, Plaintiff-Appellee, v. Gerald Keith UNDERWOOD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 629

613 F.2d 629

5 Fed. R. Evid. Serv. 797

UNITED STATES of America, Plaintiff-Appellee, v. Charles Frederick WOODS, Defendant-Appellant, and UNITED STATES of America, Plaintiff-Appellee, v. Gerald Keith UNDERWOOD, Defendant-Appellant.

Nos. 78-5206, 78-5207.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 7, 1978.

Decided Jan. 3, 1980.

Peter F. Manning, Louisville, Ky. (Court Appointed), for Charles woods.

Samuel G. Hayward, Louisville, Ky. (Court Appointed), for Gerald Underwood.

Albert Jones, U. S. Atty., James H. Barr, C. Fred Partin, Asst. U. S. Attys., Louisville, Ky., for the U. S.

Before CELEBREZZE, KEITH and MERRITT, Circuit Judges.

CELEBREZZE, Circuit Judge.

Charles Frederick Woods and Gerald Keith Underwood appeal from jury convictions on a two-count indictment charging them with armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). ¹ The defendants were tried jointly and each was sentenced to twenty-five (25) years imprisonment. ² They appeal separately on overlapping grounds.

In appealing their federal convictions for the August 26th bank robbery, the defendants contend that the district court erred in 1) denying defendant Woods' motion to suppress an oral statement he made to F.B.I. agents; 2) failing to grant a mistrial or issue cautionary instructions to the jury because of prejudicial remarks by the prosecutor in his opening statement; 3) allowing evidence unconnected to the bank robbery for which defendants were on trial to remain in the courtroom; 4) failing to instruct the jury on the definition of evidence; and 5) denying defendant Underwood's motion for acquittal on grounds of insufficient evidence. After a careful review of the record, we are of the view that the defendants' contentions are without merit and that their convictions should be affirmed.

FACTS

On August 26, 1977, the Algonquin Branch of the Bank of Louisville in Louisville, Kentucky, a federally insured institution, was robbed by three men wearing ski masks, jumpsuits, and goggles. Two of the men entered the bank armed with a pistol and a sawed-off shotgun while the third man waited outside the bank in the getaway car. At the time of the robbery defendant Woods was wanted by the Louisville Police Department in connection with several local holdups in violation of state law. Since the modus operandi of the Bank of Louisville robbery was similar to that of one of the state armed robberies, ³ Woods became a suspect in the August 26th bank robbery.

On September 29, 1977, Agent Thomas P. McWade of the Federal Bureau of Investigation (hereinafter F.B.I.) informed detective Donald Camfield of the Louisville Police Department of Woods' possible whereabouts and asked if the Louisville Police wanted to accompany the F.B.I. on their attempt to verify this information. Subsequently, four Louisville Police officers and two F.B.I. agents arrived at Woods' apartment where the Louisville authorities arrested Woods for two of the local holdups. At the time of his arrest, Woods told the officers that he had driven the getaway car in the Louisville Bank robbery. Woods' description of the robbers' disguise and the getaway car matched that given by witnesses at the bank. He was arrested by Louisville authorities later in the day for this offense.

Woods also stated that after the bank robbery the robbers had gone to a residence at 244 South 41st Street and that the police could find the sawed-off shotgun used during the robbery at that location. 244 South 41st Street was defendant Underwood's residence. A search of the premises uncovered a loaded sawed-off shotgun, two loaded .38 caliber revolvers, and a jumpsuit.

On September 30, 1977, Woods was arraigned in the Louisville Police Court for the sundry armed robberies, including the Bank of Louisville robbery. At that time the state court appointed a lawyer to represent Woods with respect to the state offenses. On October 7, 1977, Woods was reinterviewed by local and federal authorities. He then stated that he was the robber armed with the pistol inside the bank rather than the one who waited outside in the getaway car.

Woods and Underwood were subsequently indicted by a federal grand jury and charged, along with a third codefendant, with violations of 18 U.S.C. § 2113(a) and (d). Both were later convicted by a federal jury of the August 26th armed robbery of the Bank of Louisville.

I

Woods' first allegation of error centers around his statement to the F.B.I. agents on October 7, 1977, wherein he admitted entering the Bank of Louisville with a pistol. Woods argues that the district court should have suppressed this statement because of unnecessary delay in taking him before a magistrate on the federal charge. The evidence shows that Woods was arrested by the Louisville authorities on September 29 for violations of state law. At the time of his interview by federal authorities on October 7 he was still in state custody in connection with the state offenses for which he was originally arrested. Initiation of formal federal criminal procedures against Woods for the bank robbery began with his indictment by a federal grand jury on November 9 and his arraignment on November 14. Woods claims that the F.B.I. circumvented Rule 5(a) ⁴ of the Rules of Criminal Procedure for the District Courts by not arresting him on federal charges and, instead, interrogating him while he was in the custody of the local police. ⁵

In United States v. Davis, 459 F.2d 167, 170 (6th Cir. 1972), this court stated:

In applying Rule 5(a), we previously have indicated that ordinarily the relevant delay is measured from the commencement of federal detention. This rule applies where there is no proof of a "working arrangement" between state police and federal agents "for the purpose of aiding and abetting the federal officers in carrying on interrogation of the suspect in violation of Federal Rule 5(a) requiring prompt arraignment . . . ." United States v. Hindmarsh, 389 F.2d 137, 146 (6th Cir. 1968) Cert. denied, 393 U.S. 866, 89 S.Ct. 150, 21 L.Ed.2d 134. Similarly, we think any delay for purposes of § 3501(c) must be measured from the beginning of the federal detention.

Subsequently, the fifth circuit in United States v. Rollerson, 491 F.2d 1209 (5th Cir. 1974), capsulized the type of delay proscribed by Rule 5(a) and the nature of the relationship between federal and local authorities which will trigger application of the rule:

Mallory (V. United States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479) and Section 3501(c) were carefully considered by the Sixth Circuit in United States v. Davis, 1972, 459 F.2d 167. There the court found that the delay in being brought before a magistrate must be measured from the beginning of Federal detention. . . . We agree. Since Rollerson was in state custody during the time of the interview by the federal investigator, for Rollerson to prevail it is incumbent upon him to demonstrate an illegitimate "working relationship" between the state and federal authorities. . . . That is, in order to invoke the protection of Section 3501(c), he must show that the state officials unlawfully detained him in order to allow the federal investigator to secure a confession.

491 F.2d at 1212 (Footnotes omitted). See United States v. Greer, 566 F.2d 472, 474 (5th Cir.), Cert. denied, 435 U.S. 1009, 98 S.Ct. 1881, 56 L.Ed.2d 391 (1978) (relied on Rollerson, supra ); United States v. Halbert, 436 F.2d 1226, 1229 (9th Cir. 1970); United States v. Chadwick, 415 F.2d 167, 170 (10th Cir. 1969); ⁶ United States v. Hindmarsh, 389 F.2d 137, 146 (6th Cir.), Cert. denied, 393 U.S. 866, 89 S.Ct. 150, 21 L.Ed.2d 134 (1960).

While the evidence clearly demonstrates a "working relationship" between local and federal authorities in this case, there is no evidence which indicates that this relationship was "illegitimate," or that "the state officials unlawfully detained (Woods) in order to allow the federal investigator to secure a confession." Rollerson, 491 F.2d at 1212. As the court noted in Greer, 566 F.2d 472, "while there is evidence of federal-state cooperation, there is no suggestion that the state custody was a result of an improper working arrangement with the F.B.I." Id. at 474. Furthermore, there is no indication that Woods' statement to the F.B.I. was made involuntarily. ⁷

Nevertheless, defendants ask this court to extend the holding of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), to cover the situation where counsel is state appointed respecting a state offense and where Miranda warnings have acquainted the defendant with his right to the presence of counsel and where defendant voluntarily consents to proceed in the absence of counsel. While the applicability of Massiah to this situation is difficult since Woods was in state custody and there were no federal charges pending when the F.B.I. agents interviewed him, we need not reach the issue in light of Woods' waiver of his right to counsel.

Prior to his interrogation, the defendant was informed of his constitutional rights, including his right to have counsel present and his right to refuse to answer any questions. After receiving full Miranda warnings, Woods chose to speak without counsel present to the F.B.I. Because we find that Charles Woods made a clear, unequivocal, and voluntary waiver of any right to counsel, his statement was properly admissible. See United States v. Brown, 569 F.2d 236 (5th Cir. 1978); United States v. Lord, 565 F.2d 831 (2d Cir. 1977); United States v. Diggs, 497 F.2d 391 (2d Cir.), Cert. denied, 419 U.S. 861, 95 S.Ct. 112, 42 L.Ed.2d 96 (1974).

II

Defendants next contend that the trial judge should have declared a mistrial because of unfairly prejudicial remarks by the prosecutor in his opening statement. The record reveals that in a pretrial conference the prosecutor informed the court that the defendants had participated in the robbery of the ...