United States v. Lewis, Crim. No. H-76-97.

• Court: United States District Courts. 2nd Circuit. United States District Court (Connecticut)
• Writing for the Court: Richard S. Cramer, Federal Public Defender, Hartford, Conn., for defendant
• Citation: 425 F. Supp. 1166
• Parties: UNITED STATES of America v. Arlo LEWIS.
• Decision Date: 03 January 1977
• Docket Number: Crim. No. H-76-97.

425 F. Supp. 1166

UNITED STATES of America
v.
Arlo LEWIS.

Crim. No. H-76-97.

United States District Court, D. Connecticut.

January 3, 1977.

425 F. Supp. 1167

COPYRIGHT MATERIAL OMITTED

425 F. Supp. 1168

Peter C. Dorsey, U. S. Atty., Albert S. Dabrowski, Thomas P. Smith, Asst. U. S. Attys., New Haven, Conn., for plaintiff

Richard S. Cramer, Federal Public Defender, Hartford, Conn., for defendant.

RULING ON DEFENDANT'S PRE-TRIAL MOTIONS

BLUMENFELD, District Judge.

The defendant, Arlo Lewis, has been indicted for bank robbery, 18 U.S.C. § 2113(a). He has made several pre-trial motions which are the subject of this opinion.^* The defendant has moved for release from custody pursuant to the Speedy Trial Act, 18 U.S.C. § 3164, and Section 10(a) of the Speedy Trial Plan for the District of Connecticut. A hearing was held on this motion on November 12, 1976. In addition, Lewis seeks to suppress three different statements made while he was in custody on the grounds that they were obtained in violation of the rights afforded him by the fourth, fifth, and fourteenth amendments and 18 U.S.C. § 3501. Hearings were held on this motion on November 2, 1976 and November 4, 1976.¹

I. Findings of Fact

On Saturday, July 10, 1976, two black males robbed the United Bank and Trust Company, Windsor, Connecticut. On July 16, 1976, a state warrant for the arrest of

425 F. Supp. 1169

Arlo Lewis was issued upon the affidavit of Windsor, Connecticut police officer Everett Laurence Overstrom. The supporting affidavit states that Overstrom investigated the robbery with Special Agent Harry Willis of the Federal Bureau of Investigation. It further states that Overstrom and Willis showed a spread of photographs to bank manager Joseph R. Luppachino, Jr., who identified Arlo Lewis as one of the bank robbers. Overstrom's affidavit does not disclose that photographs also had been shown to six other persons who were unable to identify anyone in the spread as being one of the robbers.²

On Saturday morning July 17, 1976, Windsor, Connecticut police officer Overstrom, Hartford officer Madison Bolden, and F.B.I. Special Agents Willis and David Miller arrested Arlo Lewis in his Hartford apartment, pursuant to the state arrest warrant. At that time, Lewis was orally given Miranda warnings, first by Overstrom and shortly thereafter by Special Agent Miller. Lewis said nothing in response to these warnings. On July 16, 1976, the night before the arrest, Lewis had been stabbed by his girlfriend during an argument. He received a wound the size of one centimeter in his chest. In addition, Lewis, 24 years old, has been a heroin addict for 11 years. He had not injected any drugs into his system on July 16. However, at the time of his arrest on July 17, he made no request for medical assistance.

Following his arrest, Lewis was taken by the state officers and F.B.I. agents from his Hartford apartment to the Hartford police station. At 9:41 a. m., in the "interrogation room" of the station, he was again given Miranda warnings by F.B.I. Agent Willis. At 9:44 a. m., Lewis executed an "Interrogation Advice of Rights Form," acknowledging that he understood his rights.³ He stated that he "didn't want to say anything until he saw a lawyer."⁴ After his statement, Special Agent Willis asked him when he had last seen Wayne Brown, his alleged accomplice. Lewis responded that he had seen Brown on July 10, 1976, the day of the bank robbery. No further questions were asked of Lewis at that time. During this encounter, the defendant made no requests for medical assistance. Following the interview, he was placed in a cell in the "lockup" of the Hartford police station.

At 2:30 p. m. that same afternoon, Lewis was taken to the Hartford Hospital where his chest wound was treated. The hospital's records do not indicate that he showed symptoms of suffering from withdrawal and do not reflect any complaints in that regard by Lewis.⁵ At 3:30 p. m., he was returned to his cell in the "lockup" of the Hartford police station.

At approximately 5:30 p. m. that afternoon, Lewis initiated a conversation in the "lockup" area with Hartford police detective, Edgar Campbell, whom he knew from his neighborhood. Lewis began the conversation by asking Detective Campbell to give a message to his girlfriend. Campbell then asked Lewis what he was doing in the Hartford "lockup" and Lewis responded that he had been arrested for the Windsor bank robbery. During the course of the ensuing conversation, Campbell, who was not investigating the Windsor bank robbery, said that he had seen "a beautiful photograph of the bank holdup"⁶ and that Windsor police officers had shown him a photograph of Lewis and said that they wanted him for the robbery. He urged Lewis to cooperate with the F.B.I. Lewis then admitted his participation in the bank robbery. At no time did Campbell give Lewis Miranda warnings. The conversation with Campbell concluded at approximately 6:15 p. m.

425 F. Supp. 1170

At the end of the conversation with Campbell, Lewis asked him to inform F.B.I. Agent Willis that he wanted to speak to him. Campbell was reluctant to call Special Agent Willis at home on a Saturday night, but he contacted the Windsor police who in turn contacted Special Agent Miller (not being able to reach Willis).

At 7:55 p. m., prior to Special Agent Miller's arrival, the doctor for the Hartford Police Department treated Lewis. The doctor gave him 20 milligrams of methadone. This is the doctor's usual treatment for narcotic addicts. His records do not reflect that Lewis was in extreme pain or in an advanced stage of withdrawal.⁷

At 8:20 p. m., Special Agent Miller arrived and advised the defendant of his rights. At 8:30 p. m., Lewis executed a second "Interrogation Advice of Rights Form."⁸ During that 10-minute period, Special Agent Miller discussed the form with Lewis. In view of Lewis' earlier desire to consult with counsel, Miller wanted to assure himself that "Lewis realized exactly what he was doing."⁹ Having noticed a hospital identification tag on Lewis' wrist, Miller inquired as to his physical condition. Based upon this discussion with Lewis, Miller concluded that the defendant was in full possession of his faculties.

Following the execution of the "Interrogation Advice of Rights Form," Lewis confessed to Miller about his participation in the bank robbery. These statements were transcribed, and, after reading them, Lewis signed them at 10:05 p. m.¹⁰

II. Motion for Release From Custody

The defendant has moved for release from custody pending trial, pursuant to the Speedy Trial Act, 18 U.S.C. § 3164(b)¹¹ and Section 10(a)¹² of the Speedy Trial Plan for the District of Connecticut.¹³ These provisions require that an accused be released from federal custody if he has been in continuous detention for 90 days without being tried. The defendant was arrested pursuant to a state warrant on July 17, 1976, and has remained in custody since that date. While he was not indicted and charged with a federal crime until September 17, 1976, and was not formally in federal custody until that date, the defendant argues that the 90-day period began on July 30, 1976, when the Assistant United States Attorney received the F.B.I.'s investigation report of this case.

The basis of the defendant's argument is that:

"the state arrest and detention for the state crime of robbery in the first degree serve only as a `holding action' for the contemplated federal prosecution."¹⁴

He contends that the 90-day limit on detention awaiting federal trial will be circumvented unless the time he spent in state custody is credited.

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There is considerable merit to defendant's position. The federal authorities played a significant role in the state arrest and incarceration of the defendant. As Detective Overstrom's affidavit itself states, the F.B.I. and Windsor police jointly investigated the bank robbery.¹⁵ Furthermore, the state arrest warrant was executed jointly by state and federal officers and the F.B.I. assisted in transporting the defendant to the Hartford police station. Finally, the F.B.I. conducted the interrogation of the defendant while he was in custody at the Hartford police station. All of this indicates that the state detention may well have served as a "holding action" while the federal prosecutor prepared to present his case to the grand jury and for the subsequent trial. However, while there is merit to the defendant's claim that the 90-day period should include the time spent in state custody, I need not decide that issue at this time, for even as so calculated the 90-day period has not yet expired.

Title 18, U.S.C. § 3161 establishes the time limits within which various stages of the criminal process must be completed. For example, § 3161(g) requires that a trial take place within 180 days of arraignment. These provisions are designed to insure the speedy trial and disposition of federal criminal cases. However, recognizing that certain delays are justifiable, 18 U.S.C. § 3161(h) delineates the categories of delay which are excludable time for purposes of computing the various time limits of § 3161. Thus, 18 U.S.C. § 3161(h)(1) excludes delay resulting from hearings on pre-trial motions and 18 U.S.C. § 3161(h)(1)(G) excludes "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement."

Title 18, U.S.C. § 3164 is directed to a slightly different aspect of the speedy trial problem. It seeks to prevent a defendant from remaining in custody for an extended period of time while awaiting a trial. Section 3164(b) places the limit at 90 days, beyond which the defendant must be released from custody pending trial. However, § 3164(c) recognizes that if failure to commence trial is through the fault of the accused or his counsel, the 90-day limit may be extended.

The question presented here is whether the...