Appeal from judgment of conviction entered in the United States District Court for the Southern District of New York, Hon. John M. Cannella, Judge, for violations of 18 U.S.C. § 371, 18 U.S.C. §§ 2113(a) and 2, and 18 U.S.C. §§ 2113(d) and 2. Affirmed. Sentence on 18 U.S.C. § 2113(a) vacated.
Gewin*fn* and Mulligan, Circuit Judges and Miller, Judge.*fn**
Roland Smith appeals from a judgment of conviction entered on September 6, 1977 in the United States District Court for the Southern District of New York after a four-day jury trial before the Hon. John M. Cannella, United States District Judge. On July 19, 1977 the jury returned a verdict of guilty on three counts: Count One, conspiracy, 18 U.S.C. § 371; Count Two, bank robbery, 18 U.S.C. §§ 2113(a) and 2; Count Three, armed bank robbery, 18 U.S.C. §§ 2113(d) and 2. Judge Cannella imposed concurrent prison sentences of five years on Count One and eight years on Counts Two and Three. The judgment of conviction is affirmed. However, the sentence on Count Two (bank robbery) is vacated since it is a lesser included offense of Count Three (armed bank robbery). The government has conceded that this sentence must be vacated. United States v. Oliver, 523 F.2d 253, 260 (2d Cir. 1975).
The evidence fully supported the convictions here. Roland Smith, with three colleagues, Fred Bellamy, Stanley McDuffie, and Ernest Bethea planned and executed the armed robbery of a branch of the National Bank of North America in New York City on March 30, 1977. Smith, Bellamy and McDuffie robbed the bank, while Bethea waited outside and hailed the cab which provided their getaway to Brooklyn where they later divided up the loot. Appellant Smith does not contest the sufficiency of the evidence against him which included the testimony of two of his fellow bank robbers as well as his own admission of participation in the crime. The arguments upon this appeal hinge upon the fact that at the time the crime was committed Smith was seventeen years of age and thus he claims the protections of the Juvenile Delinquency Act, 18 U.S.C. § 5031, et seq. Specifically, Smith argues that the time interval between his arrest and his initial appearance before the magistrate was unreasonable and in violation of 18 U.S.C. § 5033. He also urges that 18 U.S.C. § 5032 mandates the suppression of all statements made by him prior to a transfer hearing to consider whether he should be proceeded against as an adult. Since his admissions were made prior to the transfer hearing before Judge Brieant on May 12, 1977 appellant alleges the district court erred in not suppressing these statements. Smith also attacks the finding that his confession was voluntary.
After a three-day suppression hearing, Judge Cannella found the following facts. Smith was arrested on April 7, 1977 at 10:15 a.m. at the home of his grandmother, Ida Brown, by New York City Police detectives. In the presence of his grandmother, Smith was advised of the nature of the charge and of his constitutional rights. The appellant indicated he understood. Mrs. Brown was told where her grandson was going and a detective gave her his phone number so that she could contact him if she had any questions about her grandson. Between 10:30 and 10:45 a.m. Smith was placed in the custody of FBI agents at a Brooklyn precinct station. The federal officers again advised him of his rights and again the defendant indicated he understood them. He was then brought to the United States Attorney's office in Manhattan and on the way Smith was advised of his rights for the third time. At about 11:00 a.m. Smith was processed by the Marshal's office. He was interviewed at 1:45 p.m. by an Assistant United States Attorney who advised him of his constitutional rights for the fourth time. During his forty minute interview Smith admitted participating in the bank robbery and receiving a share of the stolen proceeds. At 3:00 p.m. Smith was taken before a magistrate.
At no time did Smith ever indicate a failure to understand his rights and he never asked for an attorney. At the time of this interview a sawed-off shotgun used in the robbery was still missing, as was most of the stolen cash. The fourth robber (Bethea) had not been identified or apprehended.
We find no reason at all to question the voluntariness of Smith's admissions of complicity during his interview by the Assistant United States Attorney. Although his I. Q. score was admittedly low, Judge Brieant, at the transfer hearing, found Smith to be of average intelligence. Appellant had numerous previous encounters with the criminal justice system involving various assaults, robberies and larcenies which made him "street-wise" and fully conversant with his rights which were here articulated to him on four occasions. On each occasion he indicated that he understood them. The record contains absolutely no suggestion of coercion during the forty minute interrogation of appellant by the Assistant United States Attorney. Smith's grandmother was aware of her grandson's whereabouts after his arrest. Neither she nor Smith testified at the suppression hearing. It is clear from all the surrounding circumstances that the confession was voluntary. Boulden v. Holman, 394 U.S. 478, 22 L. Ed. 2d 433, 89 S. Ct. 1138 (1969).
18 U.S.C. § 5033 provides:
Whenever a juvenile is taken into custody for an alleged act of juvenile delinquency, the arresting officer shall immediately advise such juvenile of his legal rights, in language comprehensible to a juvenile, and shall immediately notify the Attorney General and the juvenile's parents, guardian, or custodian of such custody. The arresting officer shall also notify the parents, guardian, or custodian of the rights of the juvenile and of the nature of the alleged offense.
The juvenile shall be taken before a magistrate forthwith. In no event shall the juvenile be detained for longer than a reasonable period of time before being brought before a magistrate.
Smith urges that he was detained "for longer than a reasonable period of time before being brought before a magistrate." Thus, he contends, his confession must be suppressed. Appellant relies upon two previous decisions of this court on this point, United States v. Binet, 442 F.2d 296 (2d Cir. 1971) and United States v. Glover, 3 ...