United States v. Silva

• Decision Date: 17 November 1969
• Docket Number: No. 293,Docket 32941.,293
• Citation: 418 F.2d 328
• Parties: UNITED STATES of America, Appellee, v. Tony SILVA, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

418 F.2d 328 (1969)

UNITED STATES of America, Appellee, v. Tony SILVA, Appellant.

No. 293, Docket 32941.

United States Court of Appeals Second Circuit.

Argued October 14, 1969.

Decided November 17, 1969.

Kristin Booth Glen, New York City, for appellant.

Jerome C. Ditore, Asst. U. S. Atty., Eastern District of New York (Vincent T. McCarthy, U. S. Atty., Eastern District of New York, on the brief), for appellee.

Before FRIENDLY, HAYS and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

The appellant, a 19-year old Puerto Rican, was arrested January 4, 1968, in connection with the August 10, 1967, robbery of a branch of the First National City Bank on Springfield Blvd. in Queens, New York City. At his trial there was evidence, including a confession which he denied having made, from which the jury could have found that Tony Silva participated in the crime as lookout in a parking lot outside the bank. He was convicted of bank robbery with a dangerous weapon, in violation of 18 U.S.C. § 2113 (a) and (d), and conspiracy to commit the substantive offense for which he received sentences of twelve years and five years imprisonment, to run concurrently. In this appeal Silva challenges the use of his confession.

A hearing before the trial to determine the voluntariness of the confession disclosed that when he was arrested, Silva told an agent of the Federal Bureau of Investigation that he would commit suicide rather than stand trial. Within a few days after his arrival at the Federal House of Detention, he swallowed several articles — including, Silva said, half of a razor blade and some pieces of bed springs or bed spring connectors. He was taken to the prison ward of the psychiatric division at Bellevue Hospital, where x-rays were taken and he received some undisclosed treatment.¹ A few days later he was returned to the House of Detention, and he asked to speak to someone about a reduction in his bail. On January 17, he was taken to the United States Courthouse in Brooklyn to see an Assistant U. S. Attorney who had been informed that Silva wished to make a statement.

Silva had been questioned by F.B.I. agents three times previously concerning the Queens robbery, and on each occasion he had signed a waiver of his right to remain silent and made a statement denying his participation. The last such interrogation had taken place January 10, 1968, while the appellant was in the prison ward at Bellevue. One week later, on January 17, Silva met for about an hour and a half with the Legal Aid attorney who represented him. His attorney advised him of his rights, discussed the subject matter of a confession with him, and spoke to the Assistant U. S. Attorney about whether a confession would make it possible for Silva to be a cooperating witness at the trial of the other alleged participants in the robbery. The Legal Aid attorney then left Silva alone with the prosecutor and two F.B.I. agents, who spoke to him for two hours and drafted a detailed statement concerning his participation. Silva had again signed a waiver. After being allowed to make a telephone call to his mother, who informed him that she would retain counsel for him, he refused to sign the confession.

At this hearing on voluntariness Silva denied having made any confession, and also testified that he had previously undergone treatment at various hospitals for psychiatric disorders, that he had told the prosecutor about having hallucinatory visions, his use of heroin prior to his arrest, and several attempts to commit suicide. Richard Rosenkrantz, the Legal Aid lawyer who had represented Silva at the time of his confession, stated that in view of this history another Legal Aid attorney had filed a motion requesting a mental examination of Silva even before he swallowed the articles at the House of Detention. Although the request that he be committed for a psychiatric examination was apparently foregone because Silva was already in Bellevue Hospital, the record is completely barren concerning the determination made there, if any, about his mental condition. The prosecutor stated at the hearing that he knew only that Silva was hospitalized a few days after swallowing some articles and was then released.²

The judge found that the appellant had been advised of his constitutional rights and that his confession was voluntary.

No defense of insanity was raised at the trial, but substantially the same testimony about the appellant's mental condition was introduced through Silva's own statements concerning suicide attempts and a previous history of psychiatric disorders. No request for a psychiatric examination was made during the trial; but at its conclusion, both the prosecutor and Silva's attorney asked the court to consider such a measure prior to sentencing.

Silva was sentenced, however, by another judge, after he expressed a desire to have it done promptly. A motion was made at that time for Silva's commitment under 18 U.S.C. § 4208(b) for a 90-day examination; but the motion was withdrawn. Nevertheless the sentencing judge, who had earlier observed that he was "obviously unfamiliar with the record of the trial," found no need for further investigation of Silva's mental condition in any event; he stated that he had reviewed a report of an examination of the appellant conducted at Kings County Hospital two years earlier, on July 20, 1966, from which he concluded:

"The diagnosis was that he was emotionally unstable and I finally decided that no good purpose would be served by another examination."

The appellant's main contention in this appeal is that his confession should not have been found voluntary because there was no investigation of his mental competency to waive his rights and confess. We agree.

A confession or waiver of rights cannot be termed voluntary if it is made by a person whose mental condition at the time was such that "the confession most probably was not the product of any meaningful act of volition." Blackburn v. Alabama, 361 U.S. 199, 211, 80 S.Ct. 274, 282, 4 L.Ed.2d 242 (1960); see Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed. 2d 429 (1966); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Once it becomes apparent that the accused's mental condition is a factor that ought to be looked into in relation to the admissibility of his confession, the trial judge must hold a hearing at which relevant evidence may be offered, including the testimony of experts, from which the court will decide whether the accused was at the time he confessed so mentally ill that he was unable, with intelligence, knowledge and understanding, to relinquish or abandon a known right or privilege which was his; or whether "the confession most probably was not the product of any meaningful act of volition." If it is found that either of these things is so, the confession must be excluded. See Green v. United States, 128 U.S.App.D.C. 408, 389 F.2d 949, 952 (en banc 1967); Gladden v. Unsworth, 396 F.2d 373, 380-381 (9 Cir. 1968).

Even though Silva's mental competence was never placed directly in issue, the testimony concerning the circumstances of his confession was such that the trial judge should have ordered a hearing sua sponte on the narrow issue of...