United States v. Lamia, 537

• Decision Date: 25 June 1970
• Docket Number: No. 537,Docket 34002.,537
• Citation: 429 F.2d 373
• Parties: UNITED STATES of America, Appellee, v. Robert Anthony LAMIA, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

429 F.2d 373 (1970)

UNITED STATES of America, Appellee, v. Robert Anthony LAMIA, Appellant.

No. 537, Docket 34002.

United States Court of Appeals, Second Circuit.

Argued February 11, 1970.

Decided June 25, 1970.

Certiorari Denied November 9, 1970.

Jerome C. Ditore, Asst. U. S. Atty. (Edward R. Neaher, U. S. Atty. for Eastern District of New York, on the brief), for appellee.

Robert J. Haft, New York City (Gary Schwager, New York City, on the brief), for appellant.

Before LUMBARD, Chief Judge, and FRIENDLY and FEINBERG, Circuit Judges.

Certiorari Denied November 9, 1970. See 91 S.Ct. 150.

LUMBARD, Chief Judge:

Robert Anthony Lamia appeals from his conviction after a jury trial in the Eastern District on a two count indictment charging armed robbery of $8,100 from the Jamaica Savings Bank on April 7, 1967, in violation of 18 U.S.C. §§ 2, 2113(a) and 2113(d). Appellant was sentenced to a ten year term on the second count, the first count having been dismissed. The main issue on this appeal is whether the trial court properly admitted Lamia's confession which he urges was made before adequate warnings had been given pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We affirm the conviction, finding that Lamia had been adequately warned of his rights under Miranda before any questioning had begun and that he had knowingly waived his rights.

Immediately after the robbery of the Sunnyside Federal Savings and Loan Association on August 3, 1967, FBI Agent Myers began his investigation. Accompanied by two New York City detectives, Myers went in search of Lamia and found him at the bar of the Junction Inn in Queens County at 8:40 P.M. They recognized Lamia at the bar because they had "a good description of an individual who was supposed to have robbed the bank earlier that date" and also because they had "obtained a photograph from the brother-in-law of the defendant." After identifying themselves, the agents asked appellant his name, and when he said he was Robert Lamia they placed him under arrest and handcuffed him. At this time he was advised by one of the city detectives, Detective Mergner, of his right to remain silent and that anything he did say would be used against him at a later date. Lamia was then taken outside the bar and Agent Myers again identified himself and advised Lamia that

"he need not make any statement to us at that time, that any statement he would make could be used against him in court; he had a right to an attorney, if he wasn\'t able to afford an attorney, an attorney would be appointed by the court."

Myers then asked Lamia where the money from the Sunnyside Savings and Loan could be found, and Lamia stated it was in his apartment. Lamia inquired whether his partner, Montaneri, had been caught, and without responding, Agent Myers asked him where his clothing was. Lamia replied that it was in his apartment. Myers then inquired if Lamia had ever been involved in any other bank robberies with Montaneri. Lamia replied that he and Montaneri had robbed the Jamaica Savings Bank in April, 1967, and it is for this earlier robbery that Lamia was convicted.

Lamia was taken to the 108th Precinct Station House and questioned further by FBI Agents Rommel and Matson. The agents informed him once again of his rights, this time reading from the FBI form.¹ Lamia said he understood the form and signed the waiver of rights. He then proceeded to give two statements, one relating to each robbery, which were put into writing and signed.²

The oral confession given outside the bar and the later written confession were both admitted into evidence. Lamia was also identified in court by Mr. Temple, the Branch Manager of the Elmhurst Branch of the Jamaica Savings Bank, as one of the two bank robbers. Temple testified that both robbers had guns and that although his attention was focused on the gunman immediately before him, he saw Lamia by the door. He also noticed a customer entering the bank, who, after seeing the robbers and the guns, attempted to leave. Lamia grabbed the customer and pulled him back into the bank saying "You come in here." Lamia did not testify at the trial but did testify at the suppression hearing.

We find that the warnings given to Lamia adequately met the standards set in Miranda,supra. As we stated in United States v. Vanterpool, 394 F.2d 697, 698-99 (2d Cir. 1968), "The words of Miranda do not constitute a ritualistic formula which must be repeated without variation in order to be effective. Words which convey the substance of the warning along with the required information are sufficient." The Supreme Court did not prescribe an exact format to be used in advising a suspect of his constitutional right to remain silent, but rather left to the courts the duty of guarding against any invasion of that right. In resolving these questions of the adequacy of the warning we should give precedence to substance over form. See Tucker v. United States, 375 F.2d 363 (8th Cir.), cert. denied, 389 U.S. 888, 88 S.Ct. 128, 19 L.Ed.2d 189 (1967).

Lamia was told by Agent Myers that he "need not make any statement to us at this time. * * *" Admittedly the phrase "right to remain silent" was not used. The failure of the agent to use the phrase "right to remain silent," in the context of this case, is not so great a deviation from the Miranda standards as to make the warning ineffective. Here the warnings of the FBI agent were immediately preceded by warnings of the "right to remain silent" given by city Detective Mergner. Lamia, nevertheless, argues that being told that one has the "right to make no statement" is not equivalent to being told that one has the "right to remain silent," as the former connotes a formal statement to be made at some later time in a court or in a formal proceeding, while the latter is a method of advising a defendant he need not speak at all. We perceive no real distinction between advising a person that he has the right to make no statement and that he has the right to remain silent; they mean substantially the same thing to any reasonable person. While there may be philological distinctions, they surely would not occur to anyone at a time of arrest. Anyone hearing either phrase would conclude that he did not have to say anything. The court in Miranda nowhere prescribed the exact words which must be used under all circumstances. Indeed, the court seemed to equate the two phrases when it coupled its warning of the "right to remain silent" with the admonition that "any statement he does make may be used as evidence against him." 384 U.S. at 444, 86 S.Ct. at 1612. Nor do we believe that the court intended to limit the meaning of the word "statement" only to a "formal utterance reduced to writing," whatever may be meant by such a term. The court did require that a defendant know that he need not say anything and that anything he did say could be used in court against him. Lamia was fully apprised of these rights; to hold otherwise would be to elevate form over any substance. There is no point in giving such significance to the phrase "right to remain silent" that all other forms of expression conveying the same idea are precluded.

Furthermore, the court in its Miranda decisions indicated tacit approval of the language used by the FBI in its warnings. There the FBI warned, at the outset of an interview,

"that he is not required to make a statement, that any statement may be used against him in court, that the individual may obtain the services of an attorney of his own choice, and, more recently, that he has a right to free counsel if he is unable to pay." 384 U.S. at 483, 86 S.Ct. at 1632.

There is no reason to believe that Lamia thought the phrase "need not make any statement" carried with it the meaning of a formal statement at a future court hearing. The warning was coupled with language of the present and contained phrases as "to us" and "at this time." Considering the words used in the circumstances of all that was said at the time, we find it to be a full and complete warning to Lamia that he need not make any statements to the officers present with him outside the bar. No purpose would be served by forbidding all questioning after an arrest unless a prescribed ritual is followed. It is enough that Lamia understood that he did not need to say anything and that he had a right to remain silent.

Lamia was also told that he had the "right to an attorney" and if he was not able to afford an attorney one would be appointed by the court. Lamia argues that this warning did not apprise him that he had the right to the "presence" of an attorney during questioning. We disagree. Lamia had been...