Appeal from a judgment of the Eastern District of New York, Edward R. Neaher, Judge, after a jury trial convicting appellants of bank robbery and armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d). Judge Van Graafeiland dissents.
Lumbard, Mansfield and Van Graafeiland, Circuit Judges. Van Graafeiland, Circuit Judge, dissenting.
MANSFIELD, Circuit Judge:
Howard Brown and Alexander Bishop appeal from a judgment of the Eastern District of New York convicting them, after a jury trial before Judge Edward R. Neaher, of bank robbery and armed bank robbery, 18 U.S.C. §§ 2113(a) and (d). We reverse for the reason that the admission into evidence for impeachment purposes of a post-indictment statement taken from Brown violated his Sixth Amendment right to counsel and the government's use of the statement denied his co-defendant Bishop a fair trial.
On October 10, 1979, three men and two women armed with guns robbed the National Bank of North America in St. Albans, Queens, New York, of approximately $7,000. According to the later trial testimony of one of the women, Maxine Williams, two of the robbers were Brown and Bishop, who entered the bank behind their accomplices, disarmed the bank guard, pushed him to the floor, and announced a holdup. Williams testified that Bishop and another man guarded the bank floor and that Brown vaulted a 10 to 12-foot high bandit barrier, cutting his hand in the process, then opened the door to the tellers' area and, assisted by one of the women, emptied cash from the tellers' drawers. Meanwhile Maxine Williams guarded the bank manager.
Ms. Williams' testimony was corroborated by that of the assistant bank manager, John Jackson, who identified the defendants at trial, pointing out Brown as the injured vaulter and Bishop as the robber who stood on the bank floor holding a gun. In addition, the government offered the testimony of FBI agent Robert Daniel Shea that he had examined the bandit barrier shortly after the robbery and removed latent fingerprints and a dark substance believed to be blood. An FBI fingerprint expert identified the fingerprints as those of Howard Brown. Another FBI agent identified the dark substance as human blood, Group A. Brown stipulated that his blood was Type A. Photographs taken by a bank surveillance camera showed the robbery but did not reveal the individuals' faces.
Brown testified in his defense that two days before the robbery he had gone into the bank with his girlfriend who had business there. He stated that after they noticed the bandit barrier his girlfriend challenged him to touch the top. Brown testified that he was 5' 11" tall and able to dunk a basketball from a standing position "in a rim, in a hoop" 10 1/2 feet high. He identified the spot that he jumped up to and touched as the same spot where one of the robbers had vaulted the bandit barrier during the robbery. Brown denied knowing Maxine Williams and claimed no involvement in the robbery.
On cross-examination Brown was questioned about a statement*fn1 he had given to FBI Agent Shea on June 9, 1980, approximately one hour before his arraignment, following his indictment a month earlier on May 2, 1980, his arrest on May 19 and continuous incarceration thereafter. Brown admitted he had spoken to Agent Shea but denied telling Shea of his involvement in the robbery and denied having named the other four participants in the robbery, including co-defendant Bishop. In rebuttal Agent Shea testified that after he had advised Brown orally of his Miranda rights, Brown admitted his involvement in the robbery, including vaulting the barrier and cutting his hand. Shea also testified that at the same time Brown, who was not represented by counsel, had told him how many other individuals had participated in the crime and had revealed their names. At the time when he took the statement Shea was aware that Brown would be arraigned within the hour, at which time counsel would be appointed to represent him.
The Use of Brown's Post-Indictment Statement
Brown argues that Judge Neaher's admission for impeachment purposes of the statement taken from him by Agent Shea after his indictment and an hour before his arraignment violated his Sixth Amendment right to counsel, rendering the statement inadmissible for impeachment purposes under New Jersey v. Portash, 440 U.S. 450, 459, 59 L. Ed. 2d 501, 99 S. Ct. 1292 (1979). The government all but concedes that the taking of Brown's post-indictment statement without a valid waiver of his right to counsel violated his Sixth Amendment rights under United States v. Mohabir, 624 F.2d 1140, 1151 (2d Cir. 1980), which was not handed down until after the statement was obtained. The prosecutor did not use the statement in the government's case-in-chief. The government contends, however, that Brown's statement was properly admitted for impeachment purposes under Harris v. New York, 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971), to show that Brown had perjured himself during his direct examination.*fn2
Although Shea was aware that Brown would have counsel appointed for him within the hour upon arraignment, Shea conceded that he did nothing to explain to Brown the significance of his legal situation, or that he would shortly have the advice and representation of a lawyer.*fn3 Since Brown had been indicted prior to his interview with Agent Shea, his right to counsel had attached. Kirby v. Illinois, 406 U.S. 682, 689, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972) (plurality opinion); Massiah v. United States, 377 U.S. 201, 206, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964); United States v. Mohabir, supra, 624 F.2d at 1146. Indictment marks the crucial point after which the purpose of the police in interrogating the defendant is not merely to investigate but "to establish the guilt of the accused." United States v. Massimo, 432 F.2d 324, 327 (2d Cir. 1970) (Friendly, C.J., dissenting), cert. denied, 400 U.S. 1022, 27 L. Ed. 2d 633, 91 S. Ct. 586 (1971); United States v. Mohabir, supra, 624 F.2d at 1148-49. When the government crosses the line from the investigatory to the accusatory stage, United States v. Lilla, 534 F. Supp. 1247, 1281 (N.D.N.Y. 1982), the Sixth Amendment requires that the accused have the assistance of counsel or that the government meet the "heavy burden of proving that any inculpatory statements thus obtained were voluntarily given after a valid waiver of the right to counsel." Mohabir, 624 F.2d at 1147 (quoting United States v. Lord, 565 F.2d 831, 839 (2d Cir. 1977)). That "heavy burden" requires at a minimum some additional indication that the appellant understood what he was surrendering. Mohabir, 624 F.2d at 1151; United States ex rel. Lopez v. Zelker, 344 F. Supp. 1050, 1054 (S.D.N.Y. 1972). Warnings pursuant to Miranda v. Arizona do not suffice to meet the "higher standard with respect to waiver of the right to counsel that applies when the Sixth Amendment has attached." United States v. Mohabir, 624 F.2d at 1147 (quoting United States v. Massimo, 432 F.2d at 327 (Friendly, C.J., dissenting)); Carvey v. LeFevre, 611 F.2d 19, 22 (2d Cir. 1979), cert. denied, 446 U.S. 921, 100 S. Ct. 1858, 64 L. Ed. 2d 276 (1980); United States v. Lord, 565 F.2d 831, 839 (2d Cir. 1977); United States v. Satterfield, 558 F.2d 655, 657 (2d Cir. 1976).
The sequence of events in this case -- the indictment of Brown filed a month before the interrogation, his arrest and incarceration thereafter, and the prospective arraignment and assignment of counsel within an hour of his interrogation -- leaves no doubt that Shea did not have an investigative purpose in arranging this pre-arraignment "detour" of Brown for interrogation in the basement of the U.S. Marshal's office, see United States v. Marrero, 450 F.2d 373, 379 (2d Cir. 1971) (Friendly, C.J., concurring), but was seeking to elicit an uncounseled confession, a practice we have repeatedly disapproved. Mohabir, 624 F.2d at 1150; cf. United States v. Duvall, 537 F.2d 15, 23-24 (2d Cir. 1976), cert. denied, 426 U.S. 950, 49 L. Ed. 2d 1188, 96 S. Ct. 3173 (1976).
The government does not attempt to demonstrate that it has met its heavy burden of showing that Brown waived his Sixth Amendment rights prior to the Shea interview. Rather, it argues that since a statement taken from a suspect in violation of the strictures of Miranda v. Arizona is admissible for impeachment if its "trustworthiness . . . satisfies legal standards," see Harris v. New York, 401 U.S. at 224; Oregon v. Hass, 420 U.S. 714, 722, 43 L. Ed. 2d 570, 95 S. Ct. 1215 (1975), a statement taken in violation of a suspect's Sixth Amendment rights should be treated in the same fashion. This argument is rendered untenable by the Supreme Court's decision in New Jersey v. Portash, 440 U.S. 450, 59 L. Ed. 2d 501, 99 S. Ct. 1292 (1979), which the government ignores,*fn4 and our decision in Mohabir, supra.
In Portash the Court held that where the use of a defendant's prior statement (in that case immunized grand jury testimony) would be a clear violation of his Fifth Amendment rights, such testimony could not be used even for impeachment purposes. Id. at 459. See also Mincey v. Arizona, 437 U.S. 385, 398, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978) (involuntary confession may not be used to impeach credibility). Faced in Portash with the same argument as that advanced here by the government, i.e., that the Court should follow its earlier rule enunciated in Harris and Hass, the Court held that although a statement taken in violation of a suspect's Miranda rights could be used for impeachment purposes a statement taken in violation of a defendant's constitutional rights could not be so used.*fn5 It reasoned that, while Miranda rights could be balanced against the need to deter perjury, when dealing with "the constitutional privilege . . . balancing . . . is . . . impermissible." 440 U.S. at 459.
Here, too, we deal with an equally clear violation of a constitutional right, the Sixth Amendment right to counsel. Balancing this constitutional protection, therefore, is similarly "impermissible." Indeed, in Mohabir we held that even though the defendant, before giving a statement to the prosecutor after the filing of an indictment, had been warned of his Fifth Amendment and Miranda rights, this did not qualify as a waiver of his Sixth Amendment right to counsel because waivers of such rights "must be measured by a 'higher standard' than are waivers of Fifth Amendment rights," 624 F.2d at 1146 (quoting from Judge Friendly's dissent in Massimo, supra). A fortiori the admission of the statement obtained by Agent Shea in violation of Brown's Sixth Amendment right to counsel was clear error. Although there was other evidence which, standing alone, might have been sufficient to support a guilty verdict, the jury could have had reasonable doubts about that evidence because of the witness Williams' status as a co-defendant with prior convictions and a history of drug addiction and because Jackson claimed to have seen Brown only once for a few seconds at the scene of the robbery one and a half years before trial and had failed initially to describe Bishop as one of the robbers. Brown's story cannot be labelled incredible beyond a reasonable doubt for, if he had been attempting to dunk an imaginary basketball, he would have reached up and over the rim of the plexiglass barrier, leaving his fingerprints just inside the top. Thus Brown's highly self-incriminating statement in all likelihood played a critical role in the jury's decision and its admission was a serious error. Since we are obliged to consider the proof against him in relation to "the gravity of the error," Sales v. Harris, 675 F.2d 532, 540 (2d Cir.), cert. denied, 459 U.S. 876, 103 S. Ct. 170, 74 L. Ed. 2d 140 (1982), the seriousness of the error here permits at best only a speculative appraisal of what verdict the jury would have reached without his statement. Under these circumstances, we cannot say that the error in admitting his uncounseled post-indictment statement was harmless beyond a reasonable doubt, which is the stringent standard applied when violations of constitutional rights occur. Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967); Sales v. Harris, supra, 675 F.2d at 541; Klein v. Harris 667 F.2d 274, 289-91 (2d Cir. 1981).
Use of Brown's Statement to Incriminate Co-Defendant Bishop
The erroneously-admitted Brown statement, although admitted solely for impeachment of Brown, was also used by the government to incriminate his co-defendant Bishop. In cross-examining Brown the prosecutor, after eliciting from Brown that he had been interviewed by Shea, made it apparent to the jury that he was reading from Brown's statement when he converted every sentence of the statement into a question, which began, "Do you remember telling Agent Shea that . . ." or "Do you remember advising Agent Shea that . . . ." For instance, Brown was asked:
"Q. Do you remember telling [Agent Shea] . . . that you were involved in the robbery of the National Bank of North America . . . on October 10, 1979?
In the course of this questioning the Assistant U.S. Attorney asked Brown:
"Q. Do you remember advising agent Shea that you robbed the bank with an individual by the name of Alexander Bishop ? (Emphasis added).
"Q. Do you remember stating to agent Shea that Bishop . . . stayed on the banking floor. ...