U.S. v. Johnson

• Decision Date: 23 February 1976
• Docket Number: D,No. 132,132
• Citation: 525 F.2d 999
• Parties: UNITED STATES of America, Appellee, v. William JOHNSON, Defendant-Appellant. ocket 75--1196.
• Court: U.S. Court of Appeals — Second Circuit

Page 999

525 F.2d 999

UNITED STATES of America, Appellee, v. William JOHNSON, Defendant-Appellant.

No. 132, Docket 75--1196.

United States Court of Appeals, Second Circuit.

Argued Sept. 4, 1975.

Decided Oct. 30, 1975.

Certiorari Denied Feb. 23, 1976.

See 96 S.Ct. 1127.

Allen Lashley, Brooklyn, N.Y., for defendant-appellant.

Victor J. Rocco, Asst. U.S. Atty., E.D.N.Y. (David G. Trager, U.S. Atty., E.D.N.Y., of counsel), for appellee.

Before KAUFMAN, Chief Judge, and MULLIGAN and GURFEIN, Circuit Judges.

GURFEIN, Circuit Judge:

Appellant William Johnson was convicted of bank robbery in violation of 18 U.S.C. § 2113 after a trial to the court (Neaher, District Judge) in the Eastern District of New York. He was given a five-year suspended sentence and placed on probation for five years on special conditions. United States v. Johnson, 390 F.Supp. 1049 (E.D.N.Y.1975). He appeals on two grounds: (1) that the failure of the government to furnish him with an FBI memorandum of his own statement of May 26, 1972 to Agent Joseph Koletar, pursuant to Rule 16(a) of the Federal Rules of Criminal Procedure and 18 U.S.C. § 3500, so impaired the defense in the presentation of its case as to have deprived him of his right to a fair trial; and (2) that the government's purported failure to communicate its readiness for trial for a period longer than six months from the date of appellant's arrest violated the then effective Second Circuit Rules Regarding Prompt Disposition of Criminal Cases and required a dismissal of the indictment. We affirm.

On April 24, 1972, William Johnson was arrested by local and federal authorities in connection with the February 29, 1972 robbery of the Kings Lafayette Bank, 650 Fulton Street, Brooklyn, New York. After being advised of his rights, appellant agreed to accompany the arresting officers to the 76th Precinct in Brooklyn for questioning. There Johnson was advised of his rights for a second time and again agreed to be questioned in connection with the robbery. Johnson voluntarily gave a detailed narration describing his involvement in the crime and the events leading up to and surrounding the robbery. These admissions, with appellant's consent, were reduced to a two-part written statement and signed by appellant. The statement written down by FBI Special Agent Koletar included the names of most of the other participants and their respective roles, the mode of escape and, finally, the distribution of the loot. ¹

On the following morning, April 25, 1972, Johnson was arraigned before the United States Magistrate who assigned counsel and set bail. After the arraignment Agent Koletar and the Assistant United States Attorney assigned to the matter advised counsel of Johnson's cooperation and secured his consent to future interviews without counsel present, in the hope that further identifications would be made.

On May 1, under that arrangement, Agent Koletar and a detective of the New York City Police Department interviewed appellant in Brooklyn without presence of his counsel. After signing an FBI waiver of rights form, appellant identified Virgil Lee Woods from an array of photographs as present when the bank loot was distributed among the participants. Appellant signed and dated the photograph of Woods as well as an accompanying statement that Woods had been present when the appellant received his own share of the proceeds.

On May 3, 1972, two days later, Johnson was escorted, pursuant to court order, by the three arresting officers to the Bureau of Criminal Identification of the New York City Police Department to review mug shots on file in an effort to determine the identity of the driver of the getaway car. Though unable to identify any of the participants from the mug shots, appellant did identify, from a photographic array, the photograph of Gertrude 'Trudy' Register as the unidentified woman referred to in the April 24 statement, who was present when the proceeds of the robbery were distributed among the participants.

In his April 24 statement appellant implicated Mervyn Barry, Jeffrey Bonner, Earl Rozier and Randolph Randy Russell as participants in the bank robbery. Each has since pleaded guilty to lesser counts (bank larceny and/or conspiracy) in connection with that robbery. Edward Davis, also identified by Johnson as a participant with himself, has been certified as incompetent. Virgil Lee Woods was arrested after Johnson's identification of his photograph and admitted a limited involvement in the robbery. He was not prosecuted.

On May 26, 1972, Agent Koletar met with Johnson again in the Marshal's office at the federal courthouse in Brooklyn to probe further into an apparently unrelated matter--appellant's admitted narcotics trafficking at Fort Riley, Kansas, where he had been stationed as a sergeant. Though Johnson later testified at the trial that he had balked at the prospect of undercover drug work or testifying on behalf of the government, he identified his heroin contacts at Fort Riley and in Brooklyn, including one Richard Garbelotto, and described the circumstances of his own involvement in the drug traffic as a runner. During one of his 'runs' in October, 1971, appellant, fearful that he had been 'set up,' disposed of a package of heroin with a street value approximating $16,000. Unable to account for the heroin or its proceeds, Johnson and his wife were subjected to threats of physical violence.

At this May 26 interview, Johnson admitted to Agent Koletar, who took notes throughout the interview, that he had used a large part of his share of the $12,000 he had received from the proceeds of the robbery to buy these people off. This information was reduced to writing four days later and incorporated, under date of May 30, into an FBI intelligence memorandum concerning narcotics matters to the Special Agent in Charge, New York, recommending that the information be forwarded to appropriate federal and local agencies, including the Criminal Investigation Division, United States Army, Fort Riley, Kansas.

I

Appellant moved for discovery and inspection, and the government consented to provide appellant with all written or recorded statements or confessions made by the defendant, pursuant to Rule 16(a). The government turned over all his statements except the report of May 30, 1972 by Agent Koletar, which was a summary of the oral statement relating to narcotics traffic given by appellant on May 26, 1972.

Appellant then moved to suppress the statements which had been furnished to him on the ground that they had been taken in the absence of an attorney He did not move to suppress the May 30 report as such, for it had not been given to him and he had not been told of its existence. Judge Neaher conducted a suppression hearing and denied the motion to suppress the statements of appellant made on April 24 on the ground that appellant had been given the Miranda warnings and understood them. ² He refused to suppress the statements of May 1 and May 3 on the ground that the defendant and his counsel had explicitly and voluntarily waived any rights with respect to these interviews. The judge found, however, that there had not been an explicit waiver of rights regarding the meeting of May 26, and he suppressed the statement in which on that day appellant had made an identification of one McDuffie. Judge Neaher did not specifically suppress the May 30 report of Agent Koletar, however, because neither the court nor the appellant knew anything about it. The opinion simply stated that the court 'grants defendant's motion as to the May 26 interview.' The language used was broad enough to include the statements attributed to appellant in the May 30 memorandum.

The government, though it knew about the May 30 memorandum, deliberately withheld it, possibly because it believed that any statement resulting from the May 26 meeting with Agent Koletar had already been suppressed. As a matter of fact, the government did not use the FBI report of May 30 on its direct case.

At the trial it was stipulated that there had been a robbery at the Kings Lafayette Bank, a federally insured depository, on February 29, 1972, by five armed men at which $89,000 was stolen.

The appellant took the stand in his own defense. He conceded that he had signed the statements of April 24, May 1 and May 3, but maintained that he had not read them, denied participation in the bank robbery, and intimated that he had been under the influence of narcotics when he made the first statement. On cross-examination, appellant disavowed his May 26 identification of a photograph of McDuffie which he had identified as the photograph of the driver of the getaway car. The prosecutor, probing Johnson's credibility, inquired about appellant's use of narcotics and his previous involvement in narcotics traffic with Garbelotto. Johnson denied making a statement to Agent Koletar on May 26, the same day he had identified McDuffie's photograph, to the effect that he had used his share of the proceeds of the robbery, $12,000, to pay off Garbelotto for drug debts. The defense rested and the government called Agent Koletar in rebuttal to testify that the defendant had admitted to him in the May 26 interview that he had used part of his $12,000 share of the proceeds of the bank robbery to pay Garbelotto. He thus gave the direct lie to appellant. The defense objected upon the ground that all conversations after May 5 had been suppressed. That appellant had admitted receiving $12,000 as his share of the bank robbery was already established in the earlier statements in evidence. See note 1. The only new matter was the admission that he had been a narcotics runner.

Appellant now contends that the oral statement he made to Agent Koletar on May 26, later reduced to writing in a report by the agent dated May 30, was his 'statement' and should have been produced by the government pursuant to his motion for discovery and inspection under Rule...