U.S. v. Hickey

• Decision Date: 19 April 1979
• Docket Number: Nos. 78-1070,78-1071,s. 78-1070
• Parties: UNITED STATES, Appellee, v. Robert Anthony HICKEY, Defendant, Appellant. UNITED STATES, Appellee, v. William Lloyd FERREIRA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1082

596 F.2d 1082

UNITED STATES, Appellee, v. Robert Anthony HICKEY, Defendant, Appellant.

UNITED STATES, Appellee, v. William Lloyd FERREIRA, Defendant, Appellant.

Nos. 78-1070, 78-1071.

United States Court of Appeals First Circuit.

Argued Jan. 2, 1979.

Decided April 19, 1979.

Hans R. Hailey, Boston, Mass., by appointment of the Court, for Robert Anthony Hickey, defendant, appellant.

Harry C. Mezer, Boston, Mass., with whom John Wall, Boston, Mass., by appointment of the Court, and Cullen & Wall, Boston, Mass., were on brief, for William Lloyd Ferreira, defendant, appellant.

Robert B. Collings, First Asst. U. S. Atty., Chief, Criminal Division, Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Hickey, Ferreira, and one Lynch were convicted by a jury of participating in an armed robbery of the Hancock Bank & Trust Company of Braintree, Massachusetts, on February 4, 1977. See 18 U.S.C. § 2113(d). Hickey and Ferreira brought these appeals, although with one exception on different grounds. We find no merit in Hickey's appeal and affirm his conviction. As to Ferreira, we find that an error was made that requires a new trial.

I.

Witnesses to the robbery testified that at about 10:30 a. m. on February 4, 1977 two men entered the Hancock Bank wearing ski masks. One of them was wearing high-topped white sneakers and the other a dark jacket; one carried a sawed-off shotgun; the other jumped over the tellers' counter and stuffed money from the drawers into a blue hockey-type bag with white lettering. One of the men called out, "have a Merry Christmas" as they left the bank; they escaped in a yellow car with Massachusetts registration number 966-668.

Police officers and FBI agents testified that the car was found abandoned in the Braintree High School parking lot about half-a-mile from the bank, with the engine still running and the ignition popped. A hair brush, a sweater, and two ski masks were found in and around it.

The car's owner testified that the car had been stolen two nights before the robbery and that the hair brush and ski masks were not hers. An FBI agent testified that some hairs found on one of the ski masks, sweater, and in the hair brush were "microscopically identical" to the hairs of the defendant Ferreira.

A critical witness was one Michael McDonough, a government informant. He testified that Lynch and Hickey whom he had known before and identified in the courtroom came to his apartment on the day of the robbery with a third person who was introduced to him as "Bubba" and whom he identified in court as the defendant Ferreira. Lynch and Hickey were wearing leather jackets and dungarees; Hickey, and perhaps "Bubba," had on sneakers. McDonough related that Hickey displayed a shotgun and that the three "just walked in," over his objections. "Bubba," he said, was carrying a blue gym bag from which the three emptied money. They divided the money and changed clothes, putting the clothes they had been wearing into the gym bag. They then sat in McDonough's living room and talked: Lynch said that they just had robbed "the same bank that had been robbed a few weeks earlier." ¹ Hickey said that he had yelled "everyone have a Merry Christmas" as he left the bank. "Bubba" went out briefly to a pay phone to call for a ride home and, after about 30 minutes, left with Hickey.

After "Bubba" and Hickey had left, Lynch allegedly told McDonough that his car had been left in the Braintree High School parking lot while the three had taken a stolen Firebird to the bank; that Hickey and "Bubba" had gone into the bank; that they had worn ski masks and gloves; that Hickey had carried a shotgun; that "Bubba" had jumped the counter; and that afterwards they had driven back to the Braintree High School, where they had switched cars.

McDonough testified that he left Lynch in his apartment and went to work at around 3:00 p. m. When he returned, Lynch was gone but had left the blue bag with the clothes behind, along with $80 to $100. McDonough disposed of the bag in the woods and in April reported the robbery to the FBI on his own initiative.

II.

Ferreira's appeal raises a close question as to the government's right to use illegally acquired evidence for impeachment purposes on cross-examination of an accused. The evidence involved is a statement elicited from Ferreira in violation of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When Ferreira was arrested on October 27, 1977, he was given Miranda warnings and said that he would not respond to any but routine questions without an attorney. Agent Nadeau nevertheless asked him whether he had ever been known as "Bubba," knowing that Ferreira's nickname would help identify him as a participant in the Hancock Bank robbery. Ferreira responded that he was not known as "Bubba," but was known as "Booboo." Prior to trial Ferreira's motion to suppress this statement was allowed a ruling the government has not challenged.

On the third day of trial, Ferreira submitted a motion to limit cross- examination to "exclude any cross-examination of Ferreira regarding nickname or alias and specifically to exclude any reference . . . to the previously suppressed evidence of the nickname 'Booboo,' unless Ferreira testifies with regard thereto on direct examination." After the prosecution had presented its case in chief, Ferreira's counsel, Mr. Wall, who had previously indicated that Ferreira would testify, asked for an advance ruling from the court on this motion.

Ferreira's request precipitated a lengthy colloquy between the court, the prosecutor, and Wall. By the time this discussion was over, the government had taken the position that it should be permitted to cross-examine Ferreira as to his aliases, including the alias "Booboo," and that, if Ferreira denied having been known as "Booboo," it should be permitted to use the suppressed statement to impeach him. Ferreira's position, by contrast, was that the government could not ask him about aliases or nicknames on cross-examination if he did not mention them in his direct testimony.

The court ruled, in substance, that Ferreira could be cross-examined as to his aliases or nicknames, including the name "Bubba," and that if he denied all knowledge the government could call witnesses, including Agent Nadeau, to impeach him. The government now questions, however, whether the court meant to imply that it would allow Agent Nadeau to refer to the suppressed statement for impeachment purposes.

The government suggests that the court may only have signalled a willingness to receive other evidence undercutting any denial Ferreira might make of his association with the "Booboo" or "Bubba" nicknames. As Ferreira did not take the stand, it argues that he should not be able to raise this issue on appeal, both because the court's ruling was not clear and because this court can never know what issues his direct testimony, or his answers on cross-examination, would have raised. Alternatively, and assuming that the court is taken to have ruled that the suppressed statement could be used to impeach Ferreira on cross-examination, it argues that the ruling was correct.

We disagree with the government on all three points. First, the only reasonable construction of the district court's remarks, in context, is that the court would allow Agent Nadeau to reveal Ferreira's suppressed statement if Ferreira denied association with the nickname "Booboo." There would be no other reason for letting Nadeau testify. The government suggests that Agent Nadeau might have testified as to information about Ferreira's nicknames obtained independently of the suppressed statement, but this seems fanciful. Nothing was presented to the judge which would have led him to think of Nadeau as possessing impeachment information other than the suppressed statement. We think Wall could properly have advised his client, on the basis of the judge's remarks, that, if the government cross-examined Ferreira as to nicknames, the court would allow Nadeau to impeach Ferreira by testifying about the suppressed statement. ²

Second, we do not agree that Ferreira should not be able to challenge the court's advance ruling because he did not take the stand. ³ The Supreme Court has recently reviewed a ruling that reached it in much the same posture: the defendant had decided not to testify after a state trial judge had ruled that, if he testified and gave any answer on direct or cross-examination that was materially inconsistent with prior immunized testimony he had given to a Grand Jury, the prosecutor could use that testimony in his cross-examination. New Jersey v. Portash, --- U.S. ----, ---- - ----, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979). The Court held that the issue presented was not too abstract and hypothetical because the state trial and appellate courts had ruled on the merits the appellate court necessarily having concluded that the federal constitutional question was properly presented. Id. at ----, 99 S.Ct. 1292. The court observed that federal law does not insist that states require defendants to take the stand in order to preserve their rights to contest advance rulings, and that subsequent federal review is not precluded as long as a "case or controversy" is presented.

In arguing that the advance ruling here cannot be reviewed, the government cites no authority and fails to distinguish the relevant issues. The first is whether the court's ruling was sufficiently definite to permit review. We find that it was. The ruling was not merely "preliminary and tentative," See United States v. Richardson, 588 F.2d 1235, 1241 (9th Cir. 1978), Pet. for cert. filed, --- U.S. ----, 99 S.Ct. 1426, 59 L.Ed.2d 636 (Feb. 2, 1979) the court did not indicate in any way that it would reconsider...