*1 341 of his right to counsel A defendant’s one, States
choice is not an absolute 1202, (2d Cir.), Tortora, 464 F.2d 1210 554, 1063, denied, 34
cert. 409 U.S. 93 S.Ct. (1972); v. Dee denied, 714, (2d Cir.), cert. 428 F.2d 716
gan,
928,
193,
(1970), give way must jus proper
the fair and administration Calabro, 467 F.2d
tice. United States denied, (2d 1972), cert. Cir. Bentvena, 319 F.2d
United States v. denied, (2d Cir.), cert. Because testify regarding
Brown and Geller will unique with which Pollack became
matters service, we
ly familiar while in Government not abuse its
hold that the district court did disqualifying Pollack.
discretion appellant’s have considered
claim of laches and find it meritless. The appellant
Government advised at the outset objected participation
that it to Pollack’s Appellant’s subsequent
the defense. use of
substitute counsel led the Government been mooted. reappeared
When be Pollack
half, promptly brought Government disqualify
instant motion to him. The or appealed
der from is affirmed. Bassis, (The Legal New York
Barry Services Society, Federal Defender Aid defendant-appel- Unit, City), for New York America, UNITED STATES of lant. Plaintiff-Appellee, Atty., Kritzer, Asst. U. S. Glenn B. v Korman, S. (Edward R. U. Brooklyn, N. Y. . MORRIS, Leonard D. York, Mary Dist. of New Atty., Eastern Defendant-Appellant. Davis, Atty., Brook- Asst. U. S. McGowan 78-1357. Docket Y., counsel), plaintiff-appellee. lyn, N. United States Court FEINBERG Before MESKILL, Judges. Argued Jan. PER CURIAM: judg- appeals from D. Morris plea of conviction, upon his entered
ment robbery in violation guilty to bank *2 conspiracy U.S.C. 2113 to commit the the car in § which offense, driver, in the States District Court was a and arrested the for the Eastern District of New York be- judge the Charles Morris. refus- Judge Eugene only fore Nickerson. The H. ed to suppress confessions made while the appeal whether the is district Leonard was in because he found court properly denied motion to the were not made as statements gave to confessions which FBI “exploitation” illegal result arrest. agents. opinion The court’s on the motion probable obtained ruled that the reported F.Supp. 361. cause detain Leonard when to arrest and photograph witness identified him January New City po- supermarket as one lice of those in the officers were at an intersection (no Relying Staten Island for on Brown Charles rela- appellant), tion to (1975), Judge who was wanted for bur- glary. A vehicle which believed be to subsequent proba- this ruled that by driven approached the illegal ble initial the arrest. intersection and findings further fact away drove high cars at a the issue helpful be whether the speed. Charles Morris fled police cause to detain Leonard by and was the arrested detectives. Morris, independent of the arrest which Appellant Morris, pas- awas to Nickerson found be unlawful. senger in the also was arrested and Thus we the case to the district remand both were taken to the house. reconsideration, for further Questioning of apparently began findings, to: respect p. after 4:00 m. the (a) photograph 1. the Whether interrogation he committing admitted to ard Morris from which he was identified five robberies and bank robbery at issue a perpetrator supermarket robbery, implicated and he Leonard in three of of, after, was first as a result robberies, including the 19, 1978, his arrest on or was al- Questioning began of Leonard around 4:30 ready possessed Department; the Police by p. m. and was conducted different offi- us, (b) whether, appellant argues cers questioning those Charles. Thereafter, identification of Leonard Morris super- Leonard confessed to a robbery robbery agreed market to talk to the “stemmed from [Leonard Morris’s] see 451 F.Supp. arrests showed a photograph (a) Whether, prior of Leonard Morris to Leonard Mor- a witness of the supermarket robbery robbery, and ris’s confession to the witness him participant given a impli- Charles Morris had in that robbery. Later evening cating supplied which Leonard Morris lineup was identified in a as one of able cause to arrest Morris at that the supermarket robbers. (b) so, whether if the detective questioning Leonard Morris knew of this agents began questioning interrogation. fact evening and he a confession im- plicating himself and Leonard in the No- Despite dissenting of our views broth- vember of the Community er, appropriate we do not think it to reach National began Bank. The FBI question- opinion the issues in his until the discussed ing m.; p. sometime after 11:00 district court has clarified facts to thereafter, he to the Community confessed possible. extent findings After further and to two other court, reconsideration the district either attempted bank robberies. party appeal may this letter reinstate court, and, practicable, clerk of this if there was no probable cause to arrest the appeal panel. will heard be the Savon proceedings Case remanded Community Nation- opinion. Drugs robbery, and the with this consistent Robbery. al Bank (dissenting): was advised About 4:30 I would the conviction I dissent. he understood He said requiring as I see no need them, consent, and he was signed his said *3 findings. court to make further According to questions. answer Siersema, later he an hour Detective about chronology of events While the exact confessing the rob- signed a leading to Leonard Morris’ confession to (the “by the bery mall” of the uncertain, sufficiently FBI is somewhat it is was He then said he Supermarket). Acme that Leonard detention was clear Morris’ FBI. willing to talk reason, good police that acted with Morris’ proper dispatch, afternoon, that Leonard a Sometime voluntarily made to the statements were Supermarket robbery identi- to the Acme There police later to fied, photospread, Leonard Morris showing that Leonard Morris’ constitutional participants one of the rights find no error in were violated and I government argues that this Although the of the motion to Nickerson’s denial questioned, place was took before Leonard suppress. as to seemed somewhat uncertain Siersema of I think sequence events. group of six New a on time when nothing turns the exact police detectives event, at occurred. identification Tuyl were at York and Van Streets separate lineups four between 7:30 Morris was in Staten Island who P.M., and Leonard were and 10:30 burglary. wanted for and for perpetrators of robberies identified (Leonard Morris and Charles Morris are not Ice of the and Sedutto’s blood). Shortly related after o’clock Cream store. a noon the saw black sedan which they driving, believed Charles was agents of the FBI arrived at Two coming toward them York Street. ques- P.M. and station house about 8:00 stopped suddenly, When the car Charles, his advising him of after tioned sped away, they gave chase. im- signed rights. The confession he going blocks, a few accomplice in plicated as an armed was driving got out and ran. robbery on Community Charles was De- P.M., FBI 1977. After 10:00 November tectives Wilk and DeGise and arrested for Scott, assigned agents Carrig and who were burglary. investigation Community Na-
The arrived the station other was Leonard Morris. tional Bank wished to talk to The of Leonard said he exact manner his is house. Although unclear. he after he had talked to Charles. Charles testified that got privately out same did talk with Charles again talk to the FBI. hearsay testimony there that when said he wished to rights of form. Carney to He then executed a waiver Sergeant was told P.M., get During out the door the next few hours after 11:00 of held shut. Community Na- Leonard confessed to Leonard and Charles were then taken to 4, 1977 robbery on November tional Bank they the 122nd station house where all of other robberies in to two arrived about 1:30 P.M. Charles was ad- implicated Charles Morris. which he also of rights vised but was not separate six Thereafter questioned until after 4:00 P.M. statements. again advised his been found Charles then five armed admitted arrested, he unlawfully robberies been implicat- and a bank Leonard had Leonard’s statements ed Leonard in three of the robberies: the refused ground require those statements were unreasonable to situation, made after the time when the had to free in such a independent probable to detain appre- Leon- uncertainty being with the able to period ard and therefore legal again hend him had confirmed detention. their acted suspicions. Since the Leonard’s statements were not expeditiously, with the least intrusion exploitation underlying illegality be- possible, I hold that their conduct cause, a witness to the circumstances; all the reasonable under perpetra- one of the Leonard as illegality I find primary such as of the robbery tors before Leonard was require suppression of Leonard’s state- questioned, thereby legitimating the subse- ments. quent questioning quite apart detention and undisputed, Where the are facts the legality ruling we are not bound district court’s underlying arrest. This identification “in *4 law, on a such ad- as whether sense stemmed from arrest”. Since mitted Ac- facts constitute cause. purged intervention of a cordingly, affirm a we can primary taint, Judge Nickerson conclud- decision of a on the basis construction ed Leonard’s statements were admissi- upon by'the law which dis- was not relied ble at trial. See Brown v. fortiori, trict court. A we can affirm L.Ed.2d reading basis of our own of the law Wong States, Sun v. on the basis of the district court’s conclu- (1963). That Leon- sions, Espe- we as I believe should do here. ard had been held in continuous did cially already since the district court has result, not alter the since there would be no found that the identification of Morris point in requiring the to release and “in sense then rearrest Leonard. added that un- stemmed I do not believe der the suppression circumstances any purpose useful served ard’s statements would be “a dubious deter- remanding factfinding. justified not rent it the cost would exact justice.” administration of See Powell, Stone agree I taint of primary illegality was exploited rather prior than HEIMBACH, Individually Mark statements, time of Leonard’s sup- and that Acting of Citizens Committee President pression here would not advance the deter- Street, Plaintiff-Appel- to Save Water policies Amendment, rent of the Fourth lant, impose an unreasonable burden on efficient police work, and reasonable I the conviction for another (WAYNE VILLAGE OF LYONS reason as well. COUNTY, YORK), al., NEW et my opinion, there was sufficient Defendants-Appellees. justify able Docket 78-7467. detention of Leonard Morris until further Court of inquiries could be made. Leonard Morris riding in speeding car awith man wanted burgla- Jan. Submitted ry and who was known to use accomplices. These imposed circumstances upon duty ascertain,
promptly possible, whether Leonard
one of Charles’ accomplices. unidentified It