UNITED STATES of America, Appellee, v. Kenneth Eugene OLIVER, Appellant.
No. 669, Docket 74-2412
United States Court of Appeals, Second Circuit
June 17, 1975
523 F.2d 253
Before LUMBARD, MOORE and FEINBERG, Circuit Judges.
Argued April 25, 1975.
Substantial evidence supports this conclusion of the district court, so that a new trial is not necessary. United States v. Johnson, 327 U.S. 106, 113, 66 S.Ct. 464, 90 L.Ed. 562 (1946).
Judgment affirmed.
SWYGERT, Circuit Judge (concurring).
I concur in the majority‘s decision that the failure to produce this tape is harmless error, but I cannot agree with all that is said to support that conclusion. Crimaldi‘s statement contains impeachment material that the defense did not already have. Even if the defendant and his attorney suspected that Crimaldi had been a “juice collector,” actual proof of this fact was necessary for effective and ethical impeachment. Such proof is contained in Crimaldi‘s statement, and had defense counsel been aware of it he might have been in a position to employ a different “trial strategy.” I believe that Crimaldi‘s admissions concerning his criminal activity could have been used to impeach his testimony to a much greater degree than was done.
I agree with the finding of harmless error, however, because I believe that Crimaldi‘s credibility was not a crucial factor. As Judge Cummings demonstrates, his story was fully corroborated by tape recordings or testimony of governmental agents. The prosecutor in the initial portion of his closing argument practically conceded Crimaldi‘s unreliability. Instead, he asked the jury to consider all of the other evidence which, in my opinion, is overwhelming. I am convinced that this is what impressed the jurors and that full knowledge of Crimaldi‘s activities would not have influenced their verdict. Accordingly, I join in the affirmance.
I am compelled, however, to register my disquietude with the Government‘s withholding of this tape. Perhaps persons with criminal backgrounds such as Crimaldi‘s must be employed by governmental agencies. But at least both the agency and the prosecutors should take particular care in discovering all statements and information relating to such informants that should be given to defense counsel. The use of such witnesses puts this special burden on the prosecutor. Lack of communication between sections of the Justice Department and poor memories of governmental agents are weak excuses. To me the Government‘s thoughtless, cavalier conduct in this case comes to the very brink of requiring reversal.
The use of informants such as Crimaldi who have an admitted extensive, serious, and unpunished criminal background is a questionable practice to begin with, in my opinion. The failure of the Government to make the information in Crimaldi‘s statement available to the trial judge in camera (as the Government now concedes was its duty), additionally makes my vote for an affirmance a reluctant one.
George P. Doyle, Buffalo, N. Y., for appellant.
MOORE, Circuit Judge:
This is an appeal from a conviction for three counts of bank robbery arising from an armed robbery of a branch of the Manufacturers and Traders Trust Company in Buffalo, New York, on July 12, 1972. Kenneth Oliver was tried by the District Court for the Western District of New York on September 10 and 11, 1974, having waived his right to a jury trial. The evidence presented included stipulations and exhibits.
Appellant argues (1) that the United States Attorney failed to comply with the Plan for Achieving Prompt Disposition of Criminal Cases of the Western District of New York1 and thus denied Oliver his right to a speedy trial; (2) that the lower court erred in not suppressing certain evidence because the government failed to meet its burden in showing that the warrantless search was consented to; (3) that the evidence failed to support a conviction for aggravated bank robbery,
On July 12, 1972, a black man in a Camaro automobile followed an employee of the Manufacturers and Traders Trust Company into the parking lot adjoining the Buffalo branch of the bank. The man questioned the woman at gunpoint about security at the bank and then with the gun still pointed at her followed her into the bank. Once inside the bank he told the manager and tellers to open several drawers and place the money from the drawers into his black attache case. The robber knew the names of various bank employees and stated that he also knew the location of their residences. Bank employees described the robber as a black male, mid 30‘s, 5‘10” to 6‘, 235-240 lbs., wearing a fake plastic beard. The employee who had initial contact with the robber indicated that the automobile he was driving was a Camaro, beige or tan in color with a black top. When news of the robbery was broadcast, two citizens called to say that they had seen a man in a Camaro fitting the radio description and had taken down his Michigan license plate number because the man was behaving suspiciously. One of these persons observed the man in the Camaro near the home of the bank manager. The other citizen noticed the man in the parking lot of the bank in the early morning a few days prior to the robbery.
The FBI in Buffalo relayed the information about the license plate and robbery to the FBI in Detroit. A state motor vehicle department check revealed that the car was registered to a Linda Oliver whose residence was in Detroit. On July 12, 1972, an FBI agent went to the Oliver residence but did not see the automobile. He returned to the Oliver residence on the morning of July 13, 1972, with several other agents. Linda Oliver answered the door and, in response to the agents’ questions, she indicated that her license plates had not been stolen and were on her automobile in her garage and that she was married but that her husband was not at home. The agents accompanied her to her garage and saw a silvergray Camaro with a black vinyl top bearing the license plate number which had been relayed to them. The agents asked her consent to a search of the automobile and house and, when she indicated that she would agree and had nothing to hide, two of the agents drew up a written consent form which was signed by Linda Oliver and witnessed by two of the agents. A search of the car yielded $1,055 in cash and money wrappers bearing the legend “Manufacturers and Traders Trust Company, Buffalo, New York.” The agents returned to the house and again asked Linda Oliver if her husband was at home. She responded affirmatively, and the sequence progressed through arrest, questioning and admissions and search of the house yielding further evidence including more cash, a Buffalo street map with names of the bank employees written on it, a fake plastic beard, and an automatic .45 caliber gun.
On July 13, 1972, Oliver was taken before a United States Magistrate where bail was set and a removal hearing pursuant to
In the interim a bank robbery occurred in Niles, Michigan, on October 12, 1972, and as a result Oliver was arrested
Oliver remained in the custody of the Michigan state authorities from October 13, 1972 through June 25, 1973, the date he was sentenced on the Michigan state charges. On July 12, 1973, a petition and order for a writ of habeas corpus ad prosequendum was filed. Shortly thereafter Oliver was brought to Buffalo. He pleaded not guilty on July 30, 1973, but was without counsel until August 2, 1973, at which time counsel was appointed. Counsel made several pre-trial motions on August 14, 1973, including a motion for dismissal of the indictment for failure to grant defendant a speedy trial. The government answered on August 30, 1973, with an accounting of the time between arrest and defendant‘s motion. On October 1, 1973, the defense attorney abandoned the speedy trial motion. Docket Cr. 1973-269. Meanwhile, on September 1, 1973, the government notified the Court of its readiness for trial by forwarding the General Case Report (Form 74) to the Court. This report indicated that the government had been ready to try the case since August 10, 1973. Govt.App. p. 74.
I.
Appellant contends based on the above facts that the government failed to comply with the Second Circuit Rules regarding Prompt Disposition of Criminal Cases2 particularly Rule 4 which provides that “(i)n all cases the government must be ready for trial within six months from the date of the arrest . . .”3 Rule 5 provides for the exclusion of certain periods of time in the calculation of the six month period. The question then before us is how much “time” measured by the rules passed between Oliver‘s arrest in July, 1972, and the government‘s “ready for trial” date of September 1, 1973.4
The first period to examine involves the time from the first arrest on the Buffalo charges, July 13, 1972, to the time of the second arrest on the Michigan charges in October. The Magistrate‘s records indicate that on July 18, 1972, the removal hearing which had been set for July 21, 1972, was continued with the consent of Oliver‘s counsel. As noted above, continuances or adjournments were agreed on several additional times for the purpose of giving Oliver an opportunity to cooperate with federal drug officials. Prior to the removal hearing as finally scheduled, the October
From October 13, 1972 on, Oliver was in the custody of Michigan State authorities. Rule 5(d) and 5(f) are applicable to the Michigan custody period inasmuch as they cover respectively a period of unavailability when the “location [of the defendant] is known but his presence for trial cannot be obtained by due diligence” and a period of “delay resulting from detention of the defendant in another jurisdiction provided the prosecuting attorney has been diligent and has made reasonable efforts to obtain the presence of the defendant for trial.” After the dismissal of the Rule 40 removal hearing on October 20, 1972, in the Eastern District of Michigan, an Assistant United States Attorney for the Western District of Michigan was in contact with an Assistant United States Attorney in Buffalo. Believing that Oliver might still be contemplating a Rule 20 guilty plea to the Buffalo charges the necessary forms were forwarded to counsel in December 1972.5 The Buffalo Assistant United States Attorney also was kept informed of the progress of the state prosecution in Berrien County on the bank robbery and murder charges.
On January 17, 1973, Oliver‘s counsel replied to the Assistant United States Attorney for the Western District of Michigan to the effect that Oliver was no longer considering pleading guilty but rather wanted to go to trial in Buffalo. At the same time, January 22 or so, various pre-trial motions were filed and heard in Michigan state court regarding the state charges. When advised that Mr. Oliver wished to go to trial in Buffalo the Assistant United States Attorney in Buffalo filed a petition for a writ of habeas corpus ad prosequendum,
Since the government was ready on September 1, 1973, it is clear that the government was ready for trial well within six months measured according to the Plan. Trial did not occur for some time thereafter for a variety of reasons mainly, the filing and consideration of pre-trial motions, the death of Chief Judge Henderson, the consequent reassignment of the case to another trial judge, and change of counsel. Because the Rules deal with government readiness and not actual trial date, these circumstances do not affect our finding that the government complied with Rule 4 of the Plan. Taking account of appropriate exclusions, the Court was notified of government readiness within the time limit imposed by the Prompt Disposition Plan. Nor do they suggest that Oliver was deprived of his sixth amendment right to a speedy trial. Rather we hold that under the circumstances Oliver was brought to trial as expeditiously as possible.7
II.
Appellant‘s second argument is that the trial judge erred in finding that Linda Oliver consented to search of the vehicle and residence. After careful consideration of the record and the totality of circumstances we find that the judge below did not err in finding that the Government had established by a preponderance of evidence that consent to search was freely and voluntarily given by Linda Oliver. Cf. United States v. Fernandez, 456 F.2d 638 (2d Cir. 1972), United States v. Boston, 508 F.2d 1171 (2d Cir. 1974).
III.
Finally, Oliver waived a jury trial and was tried by the Court. Based on two stipulations setting out the expected testimony of ten witnesses and five exhibits he was found guilty on three counts: (1) taking $40,636.14 by force and violence and intimidation from the Manufacturers and Traders Trust Company where said moneys were deposits insured by Federal Deposit Insurance Corporation, in violation of
Appellant argues that the evidence was insufficient to support conviction on §§ 2113(a) and (d) because the stipulations failed to support a finding of the force and violence or intimidation on § 2113(a) or a finding of assault on § 2113(d). We find these claims without
Oliver was sentenced to concurrent 15 year terms on each count. He should have been sentenced on only one count. Therefore we vacate the sentence imposed on Counts I and II. See United States v. Stewart, 513 F.2d 957 (2d Cir. 1975); United States v. Pravato, 505 F.2d 703 (2d Cir. 1974); Gorman v. United States, 456 F.2d 1258 (2d Cir. 1972).
Affirmed, sentences on Counts I and II vacated.
LUMBARD, Circuit Judge (concurring):
While I concur in Judge Moore‘s handling of the prompt-disposition issue in this case, I think it appropriate to comment on an argument raised by the government, but not considered by Judge Moore. The government contends that Rule 5(a) could be used in this case to toll the running of the six-month period while state charges were pending against Oliver in the state of Michigan from October 13, 1972, to June 25, 1973. I disagree. As this issue has arisen in other cases and will surely be raised again, it may be helpful to meet it now.
Rule 5(a) provides for the exclusion of the time while proceedings concerning the defendant are pending.1 We had occasion to interpret this language in United States v. Cangiano, 491 F.2d 906, 909 (2d Cir. 1974), cert. denied, 419 U.S. 904, 95 S.Ct. 188, 42 L.Ed.2d 149 (Oct. 22, 1974). There we held that the entire period of time during which a prior federal charge was pending in the same district against Cangiano could be excluded under Rule 5(a).2 Cangiano does not control this case, however, because we are here concerned with charges pending in different jurisdictions, not two federal charges in the same jurisdiction.
The prompt-disposition rules of the federal courts are designed to ensure that a federal defendant will receive a prompt trial on federal charges against him. Thus if only federal crimes in one district are involved, as in Cangiano, it is arguable that, even if the time an initial charge is pending is excluded in calculating the time by which the government must be ready to try a subsequent
The situation is quite different when, as here, the government seeks to use the pendency of state proceedings to excuse delay in the trial of a federal case. The federal courts ordinarily can do little to ensure that pending state charges are promptly tried. Since the disposition of criminal proceedings in state court may require far more than six months, Rule 5(a) must be read narrowly when the “proceedings . . . pending” are in state court. Accordingly, except for the period when the defendant is actually on trial in a state court, I think that Rule 5(a) does not extend the time in which the government must be ready to try a federal defendant by that period of time during which state criminal proceedings are pending against that defendant, unless the government has made reasonable efforts to ensure the presence of the defendant.
This interpretation of the Prompt Disposition Plan is appropriate since the pendency of state criminal proceedings does not affect the federal government‘s ability to try different charges in federal court, except insofar as the defendant may be in state custody and therefore unavailable. To ensure the speedy trial of federal defendants, it makes sense to require that the government be ready for trial within the normal six-month period envisioned by the Plan unless it shows that it has made diligent, but unsuccessful, efforts (see Rules 5(d) and 5(f)) to obtain a defendant‘s presence for his federal trial.4
I concur in the opinions of both Judge Moore and Judge Lumbard.