U.S. v. Spencer

• Decision Date: 28 January 1992
• Docket Number: No. 243,D,243
• Citation: 955 F.2d 814
• Parties: UNITED STATES of America, Appellee, v. Michael SPENCER, Defendant-Appellant. ocket 91-1185.
• Court: U.S. Court of Appeals — Second Circuit

Page 814

955 F.2d 814

UNITED STATES of America, Appellee, v. Michael SPENCER, Defendant-Appellant.

No. 243, Docket 91-1185.

United States Court of Appeals Second Circuit.

Argued Oct. 10, 1991.

Decided Jan. 28, 1992.

Andrew J. Maloney, III, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Nelson W. Cunningham, Asst. U.S. Atty., of counsel), for appellee.

Arthur J. Viviani, New York City, for defendant-appellant.

Before MINER and MAHONEY, Circuit Judges, and DEARIE, District Judge. ¹

MINER, Circuit Judge:

Defendant-appellant Michael Spencer appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York (DiCarlo, J.) after a jury found him guilty of conspiracy to commit armed robbery of an Insured Postal Credit Union, in violation of 18 U.S.C. § 371, and armed robbery of an Insured Postal Credit Union, in violation of 18 U.S.C. § 2 and § 2113(a) and (d). The district court (McKenna, J.) (to whom Spencer's case was originally assigned) previously had granted defendant's motion to suppress statements he made to FBI agents, finding that defendant made an ambiguous request for counsel at the time of his questioning by the agents. The district court held that the government had failed to meet its burden of proving that defendant initiated interrogation following the request. Defendant's motion to suppress testimony of the car service driver who drove defendant to the robbery was denied, despite defendant's argument that the testimony was "fruit of the poisonous At sentencing, the district court accepted the recommendation made in the presentence report and classified defendant as a "Career Offender" pursuant to section 4B1.1 of the United States Sentencing Guidelines (the "Guidelines"), based upon defendant's prior convictions for attempted robbery in the third degree and robbery in the second degree. On appeal, defendant argues that the failure to suppress the derivative third-party witness' testimony violated his constitutional rights under the Fifth and Sixth Amendments. He also challenges the district court's classification of him as a "Career Offender" under the Guidelines.

                tree" derived from defendant's previously suppressed statements.   Relying on Supreme Court decisions in Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974) and Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990), the judge reasoned that the violations that occurred during defendant's questioning were not of constitutional magnitude (since the continued questioning did not involve any coercion), but rather violated only procedural safeguards.   Accordingly, the third-party witness' testimony was held admissible even though the witness' identity was derived from defendant's statements
                

For the reasons stated below, we vacate the conviction and remand the case to the district court to determine, as required by Harvey, whether defendant's waiver, if any, of his right to counsel was knowing and voluntary. The district court should also consider the government's alternative theories for admitting the testimony, namely the "attenuation" and "inevitable discovery" doctrines, if it finds defendant did not knowingly and voluntarily waive. We affirm the district court's decision to classify defendant as a "Career Offender" under the Guidelines.

BACKGROUND

On December 20, 1989, defendant Spencer and Joseph Cauldwell committed an armed robbery of a federal credit union in Manhattan. The defendant apparently had become familiar with the layout of the credit union because his mother worked there and he had visited her on several occasions.

On the morning of the robbery, Spencer and Cauldwell met at Tinton Avenue in the Bronx, at which time Spencer telephoned the Amigo Car Service for a taxicab. When the taxicab arrived, the two men directed the driver to drive them to the location of the credit union. Upon arriving at the credit union in the car, Spencer and Cauldwell realized that neither had money to pay the driver, prompting Spencer to leave Cauldwell in the car while he went into the credit union to borrow money from his mother. Shortly thereafter, Spencer returned to the taxicab and, at Cauldwell's urging, accompanied Cauldwell into the credit union to show him the layout. The driver waited in the car for the two men to return.

After Cauldwell rang the bell to the "employee only" entrance, an employee of the credit union opened the door through which Cauldwell entered. Spencer waited outside, apparently fearing that one of his mother's co-workers would recognize him. Cauldwell brandished a starter's pistol he had brought along and ordered two employees, one of whom was Mrs. Spencer, to open the safe. Cauldwell took cash and checks from the safe in an amount in excess of $31,000, stuffed the stolen funds into a black duffle bag he was carrying, and fled the credit union. Cauldwell and Spencer returned to the Bronx in the same taxicab.

Cauldwell was arrested on May 15, 1990. The FBI identified Cauldwell as a suspect in the robbery after finding a traffic ticket with his name on it, apparently dropped at the credit union at the time of the robbery. Cauldwell cooperated with the government, leading to Spencer's arrest on June 20, 1990.

During the automobile ride to FBI headquarters, agents informed Spencer that he had been indicted, and gave Miranda warnings. Spencer was given Miranda warnings again upon arrival at FBI headquarters, at which time he also was asked The district court granted Spencer's motion to suppress his own post-arrest statements, ruling, pursuant to United States v. Gotay, 844 F.2d 971, 976 (2d Cir.1988), that defendant made an ambiguous request for counsel during questioning. This conclusion was based on defendant's testimony regarding the interrogation, the FBI agents' failure to remember whether defendant requested an attorney, and defendant's refusal to sign the waiver form. The district court reasoned that there was no "evidence in the record that would show clearly and in a manner consistent with the government's burden that, after refusing to sign the waiver, defendant initiated questioning of himself by the agents." From this the court determined "that the government has not sustained its burden of showing a knowing and voluntary waiver of the right to counsel at the interrogation...."

                to sign a form waiving his rights.   Spencer refused to sign the waiver form and apparently made some reference to his right to speak with an attorney. 2  The FBI agent asked Spencer whether he would agree to answer some questions, and Spencer replied that he did not have anything to hide and would answer the questions if he could.   Spencer then made statements admitting that his mother was employed at the credit union and that he took the subway or a car service to visit her there on occasion.   When asked which car service he took to visit his mother, Spencer stated that he sometimes used the Amigo Car Service ("Amigo").   He then denied any involvement in the credit union robbery.   The FBI identified and located Jose Garcia, the Amigo driver who transported Spencer and Cauldwell to and from the credit union, through Spencer's statements and Amigo's records
                

Notwithstanding this conclusion, the district court later denied Spencer's motion to suppress evidence derived from the post-arrest statements, particularly Garcia's testimony that he drove Spencer to the credit union on the day in question. Relying on Supreme Court decisions in Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), and Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990), the district court in a memorandum opinion ruled that the violations that occurred during Spencer's questioning were not of constitutional magnitude, but rather violated only Miranda's procedural safeguards:

[t]he Tucker Court distinguished [ ] between 'compulsion sufficient to breach the right against compulsory self-incrimination' (which it found did not exist) and 'a disregard, albeit an inadvertent disregard, of the procedural rules later established in Miranda' (which it found had taken place), and went on to hold that the testimony of the witness was properly admitted at trial, no Constitutional right of the defendant in the form of the compulsion of testimony, but rather a Miranda procedural safeguard, having been violated.

The district court refused to suppress Garcia's testimony because it found that "[a]s in Tucker, there is no evidence in the record that the [agents] coerced or compelled defendant's identification of Amigo or any other statement, or acted otherwise than in good faith, and exclusion of Garcia's testimony would not serve the deterrent purposes of Miranda." The district

                court noted in a footnote to its opinion that Harvey extended the Tucker prophylactic analysis to the Sixth Amendment context.   Defendant appeals, arguing that admission of Garcia's testimony--which was derivative from his own suppressed statements, and therefore allegedly "fruit of the poisonous tree"--constituted a violation of defendant's Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel
                

DISCUSSION

Suppression of witness' testimony

In Tucker, the Supreme Court held admissible the testimony of a witness discovered as a result of a defendant's own voluntary statements, even though the police learned the identity of the witness by questioning defendant prior to informing him of his right to a court appointed attorney. Tucker, 417 U.S. at 450-51, 94 S.Ct. at 2367. The Tucker Court drew a distinction between a violation of a defendant's constitutional rights and a mere violation of Miranda's prophylactic safeguards, stating that "[t]he [Miranda ] Court recognized that these procedural safeguards were not themselves...