699 F.2d 585 (2nd Cir. 1983), 81, United States v. Brown

Docket Nº:81, 86, Dockets 81-1136, 81-1138.
Citation:699 F.2d 585
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Howard BROWN and Alexander Bishop, Defendants-Appellants.
Case Date:January 24, 1983
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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699 F.2d 585 (2nd Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,


Howard BROWN and Alexander Bishop, Defendants-Appellants.

Nos. 81, 86, Dockets 81-1136, 81-1138.

United States Court of Appeals, Second Circuit

January 24, 1983

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[Copyrighted Material Omitted]

Argued Sept. 14, 1982.

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Bernard S. Greenbaum, Brooklyn, N.Y., for defendant-appellant Brown.

Philip Katowitz, Brooklyn, N.Y., for defendant-appellant Bishop.

Thomas H. Roche, Asst. U.S. Atty., Brooklyn, N.Y. (Edward R. Korman, U.S. Atty., E.D.N.Y., Mary McGowan Davis, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for plaintiff-appellee.


MANSFIELD, Circuit Judge:

Howard Brown and Alexander Bishop appeal from a judgment of the Eastern District of New York convicting them, after a jury trial before Judge Edward R. Neaher, of bank robbery and armed bank robbery, 18 U.S.C. Secs. 2113(a) and (d). We reverse for the reason that the admission into evidence for impeachment purposes of a post-indictment statement taken from Brown violated his Sixth Amendment right to counsel and the government's use of the statement denied his co-defendant Bishop a fair trial.

On October 10, 1979, three men and two women armed with guns robbed the National Bank of North America in St. Albans, Queens, New York, of approximately $7,000. According to the later trial testimony of one of the women, Maxine Williams, two of the robbers were Brown and Bishop, who entered the bank behind their accomplices, disarmed the bank guard, pushed him to the floor, and announced a holdup. Williams testified that Bishop and another man guarded the bank floor and that Brown vaulted a 10 to 12-foot high bandit barrier, cutting his hand in the process, then opened the door to the tellers' area and, assisted by one of the women, emptied cash from the tellers' drawers. Meanwhile Maxine Williams guarded the bank manager.

Ms. Williams' testimony was corroborated by that of the assistant bank manager, John Jackson, who identified the defendants at trial, pointing out Brown as the injured vaulter and Bishop as the robber who stood on the bank floor holding a gun. In addition, the government offered the testimony of FBI agent Robert Daniel Shea that he had examined the bandit barrier shortly after the robbery and removed latent fingerprints and a dark substance believed to be blood. An FBI fingerprint expert identified the fingerprints as those of Howard Brown. Another FBI agent identified the dark substance as human blood, Group A. Brown stipulated that his blood was Type A. Photographs taken by a bank surveillance camera showed the robbery but did not reveal the individuals' faces.

Brown testified in his defense that two days before the robbery he had gone into the bank with his girlfriend who had business there. He stated that after they noticed the bandit barrier his girlfriend challenged him to touch the top. Brown testified that he was 5' 11"' tall and able to dunk a basketball from a standing position "in a rim, in a hoop" 10 1/2 feet high. He identified the spot that he jumped up to and touched as the same spot where one of the robbers had vaulted the bandit barrier during the robbery. Brown denied knowing Maxine Williams and claimed no involvement in the robbery.

On cross-examination Brown was questioned about a statement 1 he had given to FBI Agent Shea on June 9, 1980, approximately one hour before his arraignment, following his indictment a month earlier on May 2, 1980, his arrest on May 19 and continuous incarceration thereafter. Brown admitted he had spoken to Agent Shea but denied telling Shea of his involvement in the robbery and denied having named the other four participants in the robbery, including co-defendant Bishop. In rebuttal Agent Shea testified that after he had advised Brown orally of his Miranda rights, Brown admitted his involvement in the robbery, including vaulting the barrier

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and cutting his hand. Shea also testified that at the same time Brown, who was not represented by counsel, had told him how many other individuals had participated in the crime and had revealed their names. At the time when he took the statement Shea was aware that Brown would be arraigned within the hour, at which time counsel would be appointed to represent him.


The Use of Brown's Post-Indictment Statement

Brown argues that Judge Neaher's admission for impeachment purposes of the statement taken from him by Agent Shea after his indictment and an hour before his arraignment violated his Sixth Amendment right to counsel, rendering the statement inadmissible for impeachment purposes under New Jersey v. Portash, 440 U.S. 450, 459, 99 S.Ct. 1292, 1297, 59 L.Ed.2d 501 (1979). The government all but concedes that the taking of Brown's post-indictment statement without a valid waiver of his right to counsel violated his Sixth Amendment rights under United States v. Mohabir, 624 F.2d 1140, 1151 (2d Cir.1980), which was not handed down until after the statement was obtained. The prosecutor did not use the statement in the government's case-in-chief. The government contends, however, that Brown's statement was properly admitted for impeachment purposes under Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), to show that Brown had perjured himself during his direct examination. 2

Although Shea was aware that Brown would have counsel appointed for him within the hour upon arraignment, Shea conceded that he did nothing to explain to Brown the significance of his legal situation, or that he would shortly have the advice and representation of a lawyer. 3 Since Brown had been indicted prior to his interview with Agent Shea, his right to counsel had attached. Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (plurality opinion); Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964); United

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States v. Mohabir, supra, 624 F.2d at 1146. Indictment marks the crucial point after which the purpose of the police in interrogating the defendant is not merely to investigate but "to establish the guilt of the accused." United States v. Massimo, 432 F.2d 324, 327 (2d Cir.1970) (Friendly, C.J., dissenting), cert. denied, 400 U.S. 1022, 91 S.Ct. 586, 27 L.Ed.2d 633 (1971); United States v. Mohabir, supra, 624 F.2d at 1148-49. When the government crosses the line from the investigatory to the accusatory stage, United States v. Lilla, 534 F.Supp. 1247, 1281 (N.D.N.Y.1982), the Sixth Amendment requires that the accused have the assistance of counsel or that the government meet the "heavy burden of proving that any inculpatory statements thus obtained were voluntarily given after a valid waiver of the right to counsel." Mohabir, 624 F.2d at 1147 (quoting United States v. Lord, 565 F.2d 831, 839 (2d Cir.1977)). That "heavy burden" requires at a minimum some additional indication that the appellant understood what he was surrendering. Mohabir, 624 F.2d at 1151; United States ex rel. Lopez v. Zelker, 344 F.Supp. 1050, 1054 (S.D.N.Y.1972). Warnings pursuant to Miranda v. Arizona do not suffice to meet the "higher standard with respect to waiver of the right to counsel that applies when the Sixth Amendment has attached." United States v. Mohabir, 624 F.2d at 1147 (quoting United States v. Massimo, 432 F.2d at 327 (Friendly, C.J., dissenting)); Carvey v. LeFevre, 611 F.2d 19, 22 (2d Cir.1979), cert. denied, 446 U.S. 921, 100 S.Ct. 1858, 64 L.Ed.2d 276 (1980); United States v. Lord, 565 F.2d 831, 839 (2d Cir.1977); United States v. Satterfield, 558 F.2d 655, 657 (2d Cir.1976).

The sequence of events in this case--the indictment of Brown filed a month before the interrogation, his arrest and incarceration thereafter, and the prospective arraignment and assignment of counsel within an hour of his interrogation--leaves no doubt that Shea did not have an investigative purpose in arranging this pre-arraignment "detour" of Brown for interrogation in the basement of the U.S. Marshal's office, see United States v. Marrero, 450 F.2d 373, 379 (2d Cir.1971) (Friendly, C.J., concurring), but was seeking to elicit an uncounseled confession, a practice we have repeatedly disapproved. Mohabir, 624 F.2d at 1150; cf. United States v. Duvall, 537 F.2d 15, 23-24 (2d Cir.1976), cert. denied, 426 U.S. 950, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976).

The government does not attempt to demonstrate that it has met its heavy burden of showing that Brown waived his Sixth Amendment rights prior to the Shea interview. Rather, it argues that since a statement taken from a suspect in violation of the strictures of Miranda v. Arizona is admissible for impeachment if its "trustworthiness ... satisfies legal standards," see Harris v. New York, 401 U.S. at 224, 91 S.Ct. at 645; Oregon v. Hass, 420 U.S. 714, 722, 95 S.Ct. 1215, 1221, 43 L.Ed.2d 570 (1975), a statement taken in violation of a

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suspect's Sixth Amendment rights should be treated in the same fashion. This argument is rendered untenable by the Supreme Court's decision in New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979), which the government ignores, 4 and our decision in Mohabir, supra.

In Portash the Court held that where the use of a defendant's prior statement (in that case immunized grand jury testimony) would be a clear violation of his Fifth Amendment rights, such testimony could not be used even for impeachment purposes. Id. at 459, 99 S.Ct. at 1297. See also Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978) (involuntary confession may not be used to impeach credibility). Faced in Portash with the same argument as that advanced here by the government...

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