United States v. Chapman

• Decision Date: 28 September 1971
• Docket Number: No. 18012.,18012.
• Parties: UNITED STATES of America v. Lewis Greeley CHAPMAN et al. Appeal of Louis OVERTON.
• Court: U.S. Court of Appeals — Third Circuit

448 F.2d 1381 (1971)

UNITED STATES of America v. Lewis Greeley CHAPMAN et al.

Appeal of Louis OVERTON.

No. 18012.

United States Court of Appeals, Third Circuit.

Argued May 18, 1971.

Decided September 28, 1971.

COPYRIGHT MATERIAL OMITTED

Larry I. Palmer, Asst. Professor of Law, Rutgers University School of Law, Camden, N. J., for appellant.

William Braniff, Asst. U. S. Atty. (Herbert J. Stern, U. S. Atty., Newark, N. J., on the brief), for appellee.

Before SEITZ, VAN DUSEN and ADAMS, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

On September 18, 1968, defendant Overton, along with two other persons, was indicted and charged with bank robbery and putting the lives of several bank employees in jeopardy by the use of a dangerous weapon during the commission of the offense, in violation of sections 2113(a) and 2113(d), respectively, of Title 18 of the United States Code.¹ After a jury trial, defendant was found guilty on both counts on January 14, 1969. On February 20, 1969, the trial court sentenced defendant to "eighteen (18) years on each of counts 1 and 2 to run concurrently." Notice of appeal from the February 20 final judgment and commitment was filed on March 17, 1969.

I. Alleged Miranda Violations

Defendant was arrested on September 12, 1968, at his Brooklyn apartment house by three agents of the Federal Bureau of Investigation (N.T. 65). After a search of the apartment, lasting from 45 minutes to 90 minutes, the agents and defendant drove to F. B. I. headquarters in Manhattan. There defendant made a statement copied by Agent Sheer, and signed by defendant, implicating him in the robbery. The statement was introduced at trial over defense counsel's objection. On appeal, defendant claims that violations of the requirements outlined by the Supreme Court of the United States in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), occurred at the apartment, in the car, and at F. B. I. headquarters.

After entering the home of defendant and arresting and handcuffing him, Agent Sheer proceeded to advise defendant, orally, that he had a right to remain silent, that anything he said could be used against him, that he had a right to an attorney, and that an attorney would be appointed for him if he could not afford one (N.T. 62). Defendant argues that this warning was insufficient because he was not advised of his right to terminate the interrogation at any time. Defendant claims that he did not waive any of his rights at this time. A review of the record convinces us that there is no need for a decision on whether defendant was adequately advised of all his rights or whether he waived those rights prior to his arrival at the Manhattan headquarters, because defendant made no incriminating statements between the time the agents arrested him and the time when he was given warnings at F. B. I. headquarters. Defendant states in his brief that "it is unclear whether Agent Sheer also questioned the defendant about the stolen money at his apartment, and whether, in response to this questioning, the defendant identified the money as that stolen from the Linden, New Jersey bank." (Appellant's brief at 3-4). The following relevant questioning took place just after Agent Sheer testified on direct examination in the presence of the jury that he found three stacks of money while searching defendant's apartment:

"MR. PETERKIN defendant\'s attorney: I object unless this is going to be tied up to the proceeds.

"MR. KOELZER prosecutor: I intend to go into that.

"THE COURT: I will permit it conditionally, that it be tied in and be identified as the money stolen from the bank.

"Q. Did Overton identify that money; did he describe its source?

"A. Yes.

"Q. What was the source that Overton described?

"A. He said it was what was left of his share of the bank loot.

"Q. Referring to what bank?

"A. The bank which was robbed on August 30th.

"Q. Now, what happened with Overton; what did you do with Overton after the search of the apartment was completed?" N.T. 110

The shift in the focus of attention from what went on at defendant's apartment to the problem of connecting the money found in the apartment with the money stolen from the bank makes the above testimony, when considered alone, confusing on the issue of whether Overton's incriminating statement was made at the apartment or at F. B. I. headquarters, after the second warning had been given him. However, a careful review of the rest of the record shows that the testimony of the three agents and defendant as to what occurred at the apartment is consistent only if the statement in issue is understood to have been made at F. B. I. headquarters. For example, during cross-examination, a few minute after the quoted testimony and later during cross-examination before the jury, Agent Sheer indicated he had no conversation "other than for the purposes of identification" with defendant during the time spent at the apartment.² Defendant himself testified that he said nothing incriminating to Agent Sheer before arriving at F. B. I. headquarters.³ Agent Rommel, in testimony both at the suppression hearing and later before the jury, stated that he recalled no conversation between either of the other agents and defendant which pertained to the crime (N.T. 66, 147). Agent Myers also indicated in the presence of the jury on cross-examination that no conversation concerning the crime took place between any of the agents and defendant (N.T. 138).

All of this testimony by these four witnesses to the events occurring at the apartment and during the drive to F. B. I. headquarters is consistent with the view that defendant's statement concerning identification of the money found in the apartment as that stolen from the bank was made at F. B. I. headquarters.⁴

The only other statement of a possibly incriminating nature⁵ which appears in the testimony dealing with that period between the agents' arrival at the apartment and the warnings at F. B. I. headquarters was defendant's spontaneously asking during the drive to headquarters how the agents found him. This statement was only brought out in voir dire and not revealed to the jury. We have concluded that the trial judge was justified in finding that this question did not infect his subsequent confession. Nor do we think that anything else that occurred before arrival at the headquarters had a coercive effect on defendant at the time of his confession there. Defendant at no time in the apartment or in the car "let the cat out of the bag." See United States v. Trabucco, 424 F.2d 1311 (5th Cir. 1970).⁶

Thus, the validity of the confession depends on what took place during the second occasion on which government agents attempted to give warnings, at the New York office of the F. B. I. Shortly after arriving there, the three agents escorted defendant into an interview room. Agent Sheer read defendant the F. B. I. form entitled "Interrogation; Advice of Rights." This form contained a full explanation of defendant's rights and, in addition, a paragraph entitled "Waiver of rights," which reads: "I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions, I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me." All three agents testified that Agent Sheer asked defendant if he could read, that defendant answered in the affirmative, and that he was given the form, which he read, said he understood, and signed. (N.T. 57, 63-64, 72-73). The signature, "Louis Overton," appears directly beneath the paragraph entitled "Waiver of rights." The agents also testified that the confession, which appears in writing attached to the F. B. I. form, was then given by defendant. The signature, "Louis Overton," appears beneath this statement.⁷

We think it clear that the Government carried the heavy burden placed upon it by Miranda of showing that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to an attorney whether or not he could afford one. See Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Boykin, 398 F.2d 483 (3d Cir. 1968), cert. denied, 393 U.S. 1032, 89 S.Ct. 645, 21 L.Ed.2d 575 (1969). Therefore, there was no error in the admission of the confession into evidence.

Defendant also claims that the trial judge "disregarded the applicable constitutional standards in admitting the alleged confession." He contends that the trial judge, at the conclusion of the suppression hearing, out of the presence of the jury, did not make required explicit findings as to whether the requirements of Miranda v. Arizona, supra, 384 U.S. at 479, 86 S.Ct. at 1630, had been met and therefore that it can be inferred that the trial judge failed to recognize that in this case there was a "presumption of coercion from the mere presence of the dual factors of a police initiated interrogation and the defendant's being in custody." The trial judge stated that "The ruling that the court has to make at this time, as I understand the cases, is as to the voluntariness or involuntariness of the statement supposedly executed by the defendant. I find the statement voluntary." (N.T. 104). The record makes clear that the issue of compliance with the dictates of Miranda was before the court and that the court was ruling on this issue. For example, shortly before the ruling of the trial judge, defendant's counsel argued that the statement was "involuntary" because defendant was not adequately advised of his "rights." (N.T. 104). The prosecutor claimed that the statement given by the defendant "was free and voluntary within the meaning of Miranda and Escobedo, and should be admitted into evidence." (N. T. 81). A review of the record, including these statements, makes...