United States v. Ray Allen Collins

462 F.2d 792

• Court: Court of Appeals for the Second Circuit
• Decided: June 19, 1972
• Docket: 411, Docket 71-1825
• Status: Published

Opinions

LUMBARD, Circuit Judge:

Ray Allen Collins was convicted by a jury in the Eastern District of New York and sentenced to 12 years in prison for his participation in the robbery of the First National City Bank in Jamaica, Queens, on September 24, 1970, in which $55,000 was stolen and a bank guard shot.¹ He now appeals, urging that his confession made to two FBI agents should not have been introducd into evidence.² We hold that the confession was properly admitted after the district court had denied a motion to suppress after a pre-trial hearing. Accordingly, we affirm.

The evidence against Collins, apart from the confession, was overwhelming. Collins was tried separately from six other co-defendants. Three of his co-defendants, all participants in the robbery, testified against him. Their testimony showed that Collins, then only 19 years old, was a knowledgeable, full participant in the robbery. Collins was; present at the meeting at which the initial plans were made. After this meeting, he obtained stolen license plates to use on a get-away car. During the robbery he went into the bank, armed with a carbine, was present when the guard was shot, and was one of the robbers who took the money from the tellers. Each of the three co-defendants positively identified Collins in court as well as identifying him in photographs taken by an automatic camera during the course of the robbery. Collins neither testified on his own behalf nor presented any evidence.

The robbery took place on September 24, 1970. On October 5, 1970, eleven days after the robbery, acting on an informer’s tip, FBI agents and detectives from the 105th Precinct arrested Collins at 3:00 p. m. in Queens County.³ Immediately following his arrest, he was given the Miranda⁴ warnings: that he had a right to remain silent, that anything he said could be used against him, that he had a right to an attorney and one would be provided him if he were indigent, and that he had the right to terminate any questioning at any time by indicating that he did not desire to answer further questions. Collins was then transported to the 105th Precinct for processing, arriving there at approximately 3:25 p. m. For the next 35 minutes, Collins claimed that he was one James Taylor, but, at 4:00 p. m., he acknowledged that he was Ray Allen Collins.

Having acknowledged his identity, Collins was again given the Miranda warnings, including his right to terminate the interview at any time, and then was asked whether he had had any connection with the bank robbery. Collins replied that “bank robbery was not his stick and that he had had nothing to do with the robberies.” No further questions followed. FBI Agent Maheffy testified, “We let him go and sit by himself for the most part . . . when he said it wasn’t his stick, he knew nothing about bank robbery, and he didn’t want to talk about it.”

From 4:00 p. m. until 6:30 p. m., Collins remained in the 105th Precinct where he was routinely processed by the police who had participated in the arrest. No additional interrogation was attempted. Around 6:30 p. m., Collins was transferred by automobile to the FBI’s Manhattan headquarters so that he could be processed by the FBI.

The trip from the 105th Precinct to FBI headquarters in Manhattan took from 6:30 p. m. until approximately 8:45 p. m. because of the heavy Monday traffic. It is uncontested that, during the ride, Collins was not interrogated.

On his arrival at FBI headquarters Collins was again given the Miranda warnings, again including his right to terminate interrogation at any time. FBI Agent Landolfi asked Collins certain routine questions as to his age, weight, and condition of health. During this questioning, Collins admitted he was a narcotics user. At the end of the interview, Landolfi finally asked Collins about the bank robbery. Collins answered that he knew there had been “a bank robbery, but he had no knowledge of anyone who had committed the bank robbery.” Collins’ negative response terminated the questioning. From the time Collins was given the Miranda warnings until he had given his final answer, approximately eight minutes elapsed.

Further processing — taking Collins’ handprints and photographs — took another 90 minutes, the lapse of time due partly to the fact that a technician had to be called in to put the photography lab, which had been closed for the night, into working order and partly because of the length — 45 minutes — of the handprinting procedure. Again, it is uncontested that no questioning took place during this period. Finally, at 10:30 p. m., Collins was transferred to the Federal House of Detention in Manhattan, there receiving, at 11:00 p. m., a narcotic substitute to forestall any possible ill effects caused by his forced withdrawal from heroin.

At 10:00 a. m. the next morning, FBI Agents Neville and Hardin took Collins by car from the Manhattan House of Detention to the United States Attorney’s Office in the Federal Courthouse in Brooklyn. The trip took one hour. At the beginning of the ride, Agent Hardin advised Collins of his Miranda rights including his right to halt any interrogation at any time. He then asked Collins if he would like to discuss the bank robbery. Collins responded negatively and, during the remainder of the ride, neither agent attempted to interview him.

On arriving at the United States Courthouse, Neville and Hardin proceeded, with Collins, to Assistant United States Attorney Puccio’s office to process the papers necessary to arraignment. Hardin and Neville kept Collins with them because, until after arraignment, he was charged to their custody. Puccio, who was involved in court proceedings that morning, was not in his office when Hardin, Neville and Collins arrived there at approximately 11:00 a. m.

Agent Hardin testified that he felt “in view of the circumstances [of the case], we felt . . . one last try” at a confession was warranted. Asked to explain “the circumstances,” Hardin indicated that most of the robbers were still at large and “we were interested in stopping more killings, more bloodshed and more bank robberies, and we felt that he might be able to help us and we would appreciate his cooperation.”

Collins was then advised of his Miranda, rights, again including his right to discontinue the interview at any time. After listening to a few questions, Collins again indicated that he did not wish to discuss the case. Hardin then ceased questioning Collins, but appealed to him to assist the FBI in catching the members of the gang still at large. Hardin testified, “We told him we feel there is a strong possibility that he may have something to do with it and that we needed— would like for him to help us or assist us in identifying these people.” Collins made no response to Hardin’s appeal. When Puecio returned to his office at approximately 11:30 a. m., he gave Collins the Miranda warnings, asked Collins if he wished to make a statement and receiving no answer asked the agents if Collins had made a statement and was told that he had not. Hardin and Neville, with Collins still present, then began to discuss the case with Puccio in preparation for the arraignment, apparently occasionally addressing Collins. At approximately 11:50 a. m., Collins was again asked if he wanted to make a statement. He then confessed his participation in the robbery and described the robbery and the other participants in full detail.

Once Collins made his initial confession, five more hours were spent in having him identify the other robbers from photographs and in obtaining information on future bank robberies planned by the gang. At 5:45 p. m. Collins was arraigned. At arraignment, he was represented by counsel.

Collins now claims that his confession should not have been admitted into evidence since some 21 hours had elapsed between his arrest and his confession and 26 hours between his arrest and his arraignment. Basing his argument on Rule 5(a), F.R.Crim.P., and the line of cases beginning with McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) and culminating in Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), which prohibit unnecessary delay prior to arraignment, he argues that the time elapsed prior to his arraignment was unnecessary and rendered his confession inadmissible. We disagree.

Even assuming the applicability of the McNabb-Mallory standard, but see 18 U.S.C. § 3501, the delay prior to Collins’ arraignment was not “unnecessary.” Arrested at 3:00 p. m., 25 minutes was spent in transporting him to the local stationhouse and 35 minutes in establishing his identity. Routine processing occupied the next 2% hours during which only a single question was asked. Owing to the complexities of federal-state cooperation, he then had to be transferred to FBI headquarters for further processing, the trip itself taking two hours and the processing another two. During this four-hour period, he was questioned only once for approximately eight minutes. He then was placed in the House of Detention for overnight incarceration. The next morning he was taken to the United States Attorney’s Office in Brooklyn, the trip taking one hour. Waiting for the Assistant United States Attorney took approximately % hour and supplying him with the information necessary for arraignment took approximately 15 minutes. Collins then con-, fessed and the next 5% hours were spent in particularizing the confession.

Under our view of the case none of the time prior to Collins’ confession and arraignment was “unnecessary” within the meaning of the McNabb-Mallory rule. We have consistently held that delays for purposes of routine processing — here a total of 3 hours and 15 minutes spent at the 105th Precinct, FBI headquarters and Assistant United States Attorney Puccio’s office — or for overnight lodging —here the 11% hours in the Manhattan House of Detention- — do not constitute unnecessary delay within the McNabbMallory rule. E. g., United States v. Price, 345 F.2d 256 (2d Cir.), cert. denied, 382 U.S. 949, 86 S.Ct. 404, 15 L. Ed.2d 357 (1965); United States v. Middleton, 344 F.2d 78, 82 (2d Cir. 1965). Of the remaining 9% hours, 3Vá hours, the time spent in transit, was clearly necessary to move Collins through the' complexities of the combined federal-state system, % hour was necessary to establish his identity and 5% hours were consumed in particularizing a voluntarily given confession. No part of these detention periods was unnecessary. The conduct of the FBI and the New York City Police Department was at all times directed to processing Collins as expeditiously as possible for arraignment.

Moreover, the present viability of the McNabb-Mallory rule is open to serious question. See United States v. Marrero, 450 F.2d 373 (2d Cir. 1971). Congress has recently enacted statutory rules governing the admissibility of a confession in a federal criminal proceeding. 18 U.S.C. § 3501(a) provides that all voluntary confessions are admissible and 18 U.S.C. § 3501(b) provides that in determining the voluntariness of a confession “the time elapsing between arrest and arraignment” is only one factor to be considered. Taken together, the two provisions seem to have modified the Mc-Nabb-Mallory rule that unnecessary delay in arraignment is sufficient in and of itself to require exclusion of a confession. Rather the Congressional test would seem to be the voluntariness of a confession under all the circumstances.⁵ Here, as the circumstances of the delay were noncoercive and during it Collins was not subjected to harassing interrogation, we hold that the delay in no way affected the voluntariness of the confession.

Collins contends, however, that the delay combined with his youth, his use of drugs, and the initial absence of counsel, to make his confession involuntary. See, e. g., Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962); Reck v. Pate, 367 U.S. 433, 81 S. Ct. 1541, 6 L.Ed.2d 948 (1961); Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1940). We disagree. In our view, nothing in the record supports Collins’ contention that the confession was involuntarily made. Though Collins was only 19, no stratagems were used to take advantage of any possible youthful ignorance or naivete. Similarly, though he was a drug addict, a narcotic substitute was given him to forestall possible discomfiture as a result of his forced abstinence from heroin. Moreover, prior to his confession, Collins was subject neither to intimidating police conduct nor to mistreatment of any sort. He was only sporadically questioned and on each occasion advised of his rights. In short, his confession was voluntary.

Collins’ last argument assumes that his confession was voluntary, but argues its inadmissibility under Miranda because of the “refusal of the agents to terminate their interrogation of appellant, despite his repeated requests that they do so.” The record does not show that the agents ignored any request of Collins.

We recognize that in Miranda the Court said that the police may not ignore a defendant’s stated wish to have any interrogation cease. Miranda v. Arizona, supra, 384 U.S. at 473-474, 86 S.Ct. at 1627.⁶ But here all the government agents who had custody of Collins recognized their obligation under Miranda and advised him of his right to halt any questioning. Never was Collins questioned, nor in any way addressed, without being expressly told that the questioning would ceased if he so desired. On three occasions prior to his confession, Collins had seen that this was true. On Monday, at 4:00 p. m., interrogation had ceased after a single question when Collins said that he had not been involved in the bank robbery. At 8:45 p. m. that same evening, interrogation had immediately ceased when Collins said he didn’t wish to discuss the case. On Tuesday, at 10:00 a. m., while in transit, Collins’ wish not to discuss the case was again respected. After these three occasions, it must have been clear to Collins that he was neither faced with badgering from relentless interrogators nor that his immediate well-being depended on his submission to a menacing captor’s demands. Quite the contrary was true; he was considerately treated throughout.

Against this background, Agent Hardin’s plea that Collins confess to prevent “more killings, more bloodshed, and more bank robberies” amounted to no more than an exhortation that Collins reevaluate his decision not to talk. We do not believe that anything decided in Miranda was meant to prohibit police officers from ever asking a defendant to reconsider his refusal to answer questions. So to hold would be tantamount to enacting a “no questioning” rule once a suspect was in custody. Such a rule finds no support in the Fifth Amendment nor, fairly read, in Miranda itself, nor in common sense.

The circumstances of this case differ substantially from those in United States v. Crisp, 435 F.2d 354 (7th Cir. 1970), cert. denied 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116 (1971) or United States v. Priest, 409 F.2d 491 (5th Cir. 1969). In those cases, the defendant was subjected to intensive questioning immediately following a refusal to answer. Here Collins was not subjected to any immediate re-interrogation, but only was asked to reconsider his refusal to answer. So long as such reconsideration is urged in a careful, noncoercive manner at not too great length and in the context that a defendant’s assertion of his right not to speak will be honored, it does not violate the Miranda mandate. In the circumstances of this case, even if Collins’ confession were in response to Agent Hardin’s request, it was not made involuntarily.

The record makes clear, however, that there was a substantial gap between Agent Hardin’s request and the confession. Once Assistant United States Attorney Puccio arrived in the office, the further conversation was directed not toward Collins, but toward preparing the complaint. Collins’ confession followed a period of time in which no statements were addressed to him and during which there was clearly no coercive behavior by either FBI agents or by the Assistant United States Attorney. The waiver of his rights was knowing and intelligent; the confession was voluntary and it was properly admitted into evidence.

Affirmed.

1 . Collins was convicted of violations of 18 U.S.C. § 2113(a) (armed bank robbery) and 18 U.S.C. § 2113(d) (assault with a dangerous weapon in the course of a bank .robbery) and given concurrent 12-year sentences.

2 . Collins also contends that the trial judge erroneously failed to instruct the jury that his confession had to be proved voluntary beyond a reasonable doubt. This contention has no merit. Lego v. Two-mey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed. 2d 618 (1971).

3 . No challenge has been made as to the propriety of the arrest.

4 . Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966).

5 . We do not decide whether § 3501 intended to overrule Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or would be constitutional if it did.

6 . “Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.” (Footnote omitted.) Miranda v. Arizona, 384 U.S. at 473-474, 86 S.Ct. at 1627.