Appeal from a conviction in the District Court for the Western District of New York, John T. Elfvin, Judge, upon a conditional plea of guilty to bank robbery in violation of 18 U.S.C. § 2113(a) (1976), claiming error in the denial of a motion to suppress. WINTER, Circuit Judge, dissents.
Feinberg, Chief Judge, Friendly and Winter, Circuit Judges. Winter, Circuit Judge, dissenting.
Glenn William Hall, a previous visitor to this court, see United States v. Hall, 421 F.2d 540 (2 Cir. 1969), cert. denied, 397 U.S. 990, 25 L. Ed. 2d 398, 90 S. Ct. 1123 (1970),*fn1 appeals from his conviction in the District Court for the Western District of New York, also for the crime of bank robbery, 18 U.S.C. § 2113(a), this time on a plea of guilty. The plea was conditioned on the result of an appeal from Judge Elfvin's denial of a suppression motion. Both the motion to suppress and the plea agreement were oral.*fn2
The robbery of The First Federal Savings and Loan Association of Rochester (First Federal) at Clarence, New York, on August 6, 1982, was virtually a replay of the robbery of The Merchants National Bank & Trust Co. of Syracuse at Cicero, New York, on December 12, 1968, of which Hall was previously convicted. In both instances a lone white male wearing a stocking mask over his face and carrying a weapon entered the bank, ordered the tellers to fill a bag with money, and then escaped by using a teller's car. While in the 1968 robbery a lead to the identity of the robber was given by an observant spectator outside the bank, on this occasion the lead came from an unidentified person who found enough resemblance in the surveillance photographs to inform the New York State Police, which in turn notified FBI Special Agent McCrary, that he believed Hall to be the perpetrator. A check of the FBI files disclosed Hall's commission of the very similar robbery in Cicero. McCrary then requested the Erie County Sheriff's Department to search its records concerning Hall. The Department advised McCrary that it had an arrest warrant outstanding against Hall on a bad check charge and planned to execute the warrant that day.
When two deputies from the Sheriff's Department went to Hall's home to execute the arrest warrant, they invited McCrary to accompany them. The deputy sheriffs approached Hall outside his home, told him that he would have to come with them to the Lancaster Village Police Department, and informed him that he could post a proper bond. Hall asked to be driven to his van, which was under repair at a local garage, in order to obtain a registration card for use as security -- a request showing a degree of familiarity with criminal procedure. The deputies complied with the request. After he had obtained the registration, Hall was driven to the Lancaster Police Department. He was never cuffed or restrained, and there was no discussion of the First Federal robbery. After being booked and fingerprinted, he was placed in an open waiting room.
McCrary's direct testimony at the suppression hearing was that he entered the room shortly thereafter and told Hall that he wished to speak to him about the First Federal robbery. McCrary immediately began advising Hall of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). After he had gotten as far as warning that Hall didn't have to speak to him but had the right to remain silent, Hall began talking, while McCrary continued administering the warnings. The gist of Hall's talk, as recounted by McCrary, was "that the F.B.I. had arrested him for a bank robbery previously and that he didn't like the way he was treated in the past by the F.B.I. and that he felt that we were out harassing him, trying to tie him into a bank robbery this last Friday and denied any involvement in it, and so forth."*fn3 McCrary told Hall that he was in charge of the investigation of the First Federal robbery for the FBI, was going to resolve it and wanted to get to the bottom of the situation regarding Hall as a suspect. Running true to his 1968 form, Hall said that was fine.
McCrary asked if Hall had any cash on his person; Hall said he did. McCrary asked if he could see it; Hall said he could. Hall then reached in his pocket and handed McCrary $195 in currency. Seeing three $20 bills, McCrary checked them against the list of such bills included in the bait list of the money taken from the bank and found that one was in the list. When McCrary confronted Hall with this and asked whether there was a logical explanation for Hall's possession of the money, Hall first sought and received an opportunity to check the bill produced by him against the list and then requested a few minutes to think it over before he said anything else. After the few minutes, Hall said, without further comment by McCrary, "Well, okay, I robbed the bank."
McCrary stopped the interview temporarily, and then proceeded to give Hall the Miranda warnings again. Hall said he wished to be fully cooperative. McCrary suggested that Hall make available any money left from the robbery as well as the handgun he had used. Hall said he would call his wife and ask her to bring them down, as she later did. The money included eight more $20 bait bills.
McCrary and the Erie County deputy sheriffs then took Hall to the FBI office. Two Advice of Rights forms were produced. One was given to Hall; FBI Agent Mount read from the other. Hall indicated that he understood his rights, as he had previously done at the Lancaster Police Department. Hall then signed the portion of the form entitled "Waiver of Rights". After questioning by the two FBI agents, McCrary wrote out a full confession which Hall signed, after listening to McCrary's reading it back to him.
McCrary was subjected to extensive cross-examination. This elicited a number of facts not fully covered in his direct testimony. After McCrary had told Hall he didn't have to talk if he didn't want to but that McCrary would like to ask some questions if he would answer, Hall said that he wasn't involved and that he was willing to talk about the robbery. Although McCrary had mentioned only Hall's right to remain silent before Hall started talking, McCrary eventually went through each right but didn't stop to ask whether McCrary understood since Hall was talking simultaneously. Because of this McCrary couldn't be sure how much Hall had heard or understood. McCrary never expressly asked Hall at the Lancaster Police Department to waive his rights; this was because he believed that Hall had indicated his desire to talk at the beginning and kept repeating the desire thereafter. Hall was "defensive" and "nervous" during the period before his production of the currency.
After summarizing the facts, Judge Elfvin characterized Hall's contentions as follows:
Hall's contentions are that he was not advised of his constitutional rights prior to custodial interrogation. He claims that he was compelled to hand over the tainted bill and that he confessed to the robbery unknowingly and that, although he then was advised of his rights, the production of the valise and the gun and the subsequent full confession all were "fruits of the poisonous tree" -- i.e., that all of the latter flowed from the earlier unconstitutional behavior on the part of the agent.
After criticizing Agent McCrary for having made use of the outstanding bad check warrant to place Hall in custody, a criticism in which we do not join,*fn4 and for acting "not at all maturely" in his initial administration of the Miranda warnings, he nevertheless found that Hall was understanding of his rights. He referred to the fact that Hall "was not virginal in his relationship with police and other law enforcement personnel", having been earlier convicted of bank robbery.*fn5 The judge continued that while Hall may have been defensive and nervous in his initial conversation with Agent McCrary, "what he was saying to the agent was that he knew what his rights were and that he was aware that the agent was not his friend and that he was cognizant that the agent would use anything he might say against him." The judge pointed out that when Hall was "braced" by the agent's unexpected discovery that one of the bills handed over by him was bait money, "he didn't ...