United States v. Peter Columbus Curry, Jr.

America, UNITED STATES Appellee, CURRY, Jr.,

Peter Columbus Defendant- Appellant. 365, Docket 29000.

No. Appeals

United States Court Second Circuit.

Argued March 1965.

Decided Dec. 11,1966. Rehearing April

As Modified on

Hays, Judge, Circuit dissented. Y., brief),

York, Brooklyn, N. appellee. F. R. Mansfield and Robert

Walter Morten, City (Peter York W. Mitch- New Roger Hawke, City, ell and New York J. brief), defendant-appellant. Judge, LUMBARD, Chief Before Judges. HAYS, Circuit MOORE and Judge: LUMBARD, Chief Curry’s appeal Peter Columbus jury Eastern a in the his conviction robbery, District York for bank of New fellow- in the course which one of his guard, robbers shot and killed a bank imprison- and from his to life sentence ment, questions: (1) raises four Wheth- government er it was error to allow the use, purpose impeaching for the Curry contrary testimony given by defense, statements own agents arraignment, to FBI to his suppressed had been statements government direct evi- from use as dence; (2) or not U.S.C. Whether 2113(e), which leaves to guilty of found whether a defendant felony-murder suffer the death should penalty, applied instant case Amendment; (3) repugnant Fifth selecting Whether the method of rights panel was in violation of systematically excluded Ne- because groes panel; (4) from the Whether denying, after the district erred in court hearing, a motion for new trial govern- alleged one which defendant and that ment witness recanted government testimony of another witness impeached. materially find could allegations with- all these of error to be out substance affirm the conviction. Curry was first tried before jury, T. but Matthew Abruzzo and a Judge’s illness caused mistrial trial, government’s case. A second conducted from to December November Dooling, 22, 1963, John F. before Jr., judgment of convic- resulted Ditore, Atty., Jerome C. Asst. U. S. of 18 tion violation U.S.C. §§ Curry (Joseph (e) Eastern 2113(a), Dist. of New (d) York P. from which Hoey, Atty., U. appeals. S. Eastern Dist. of New government’s sup- Curry escaped proof amply out Wileoxson and jury’s ports Oldsmobile Utica Avenue exit to verdict robbery away. guilty participating sped By means the walkie- Lafayette picked up $32,763.43 in cash from the them when talkie Nussbaum Brooklyn Nuss- the morn- abandoned the Oldsmobile. National Bank in together 15, 1961, Buf- went baum Wileoxson back December Bobby Brooklyn Frederick Nussbaum and falo and returned Albert part Wileoxson, Later and killed home. received Randell who shot guard. $32,000 loot. one-third bank share of white, Wileoxson, Nussbaum and both Curry, and Wileoxson Nussbaum pleaded guilty in detail testified years prior met several 1961 while played by Curry, Negro, serving Reform- sentences at Federal robbery. planning and execution of the Curry Chillicothe, atory in Ohio. When Curry other Several witnesses identified Georgia prison in released a was from Negro two as the with the revolvers. in visited October he Nussbaum addition, Brunner, had been Valerie Buffalo, money using sent Nussbaum had Curry’s time, at the testified fiancee Brooklyn, later where him. He came to helped Curry that he rob the admitted money. Nussbaum continued to send him gave testimony corrobo- bank and other joined Curry in York and Wileoxson New rating Curry’s with contacts Wileoxson Long drove search- the two around Island robbery. shortly before the ing likely for a Nussbaum bank to rob. commencing and, No- came York to New Curry testified, his he admitted When 24, 1961, all about vember three talked relationship and Nuss- with Wileoxson robbing upon They finally a bank. fixed plan- participation and in the baum Lafayette at and Bank Utica Avenue ning robbery in at- and an abortive Kings Brooklyn. Highway, The trio tempt rob bank on December the same layout regarding observations made meeting 8. He even Wileoxson admitted bank, em- of the the movement of its morning De- and Nussbaum it, delivery ployees, money and the Negro cember he said that a but disguises they planned a and their and named with and “Streets” was them getaway They also an Olds- route. stole Curry, he, and them at 7:30 A.M. left getaway car. mobile go Curry named did not also the bank. others, Deroy Martin, Pettit three Robert up picked Nussbaum and Wileoxson Cunningham, took and Fred who he said Curry A.M. on near his home 7:00 robbery. part planning attached December and Nussbaum crepe black hair moustache the FBI. Statements to I. lip-. Curry upper Wileoxson went and Oldsmobile; Curry, Curry put on Arrest in warrants Wileoxson bank corduroy cap and revolvers Nussbaum were secured from a red and took two weapons supply between States Commissioner Shiftman from the Nussbaum February 12,1962. parked provided. 6:00 and P.M. on Nussbaum across 7:00 Agents FBI, Long Ford Putz of ac- the bank in his and the street wagon, companied City equipped York Detective with New station which was Lesson, Curry home transmitter receiver. arrested a walkie-talkie Brooklyn Wileoxson, wearing stepfather and dark his mother a raincoat Washington, glasses, and when he there from one bank entrance arrived entered guard C., 13,1962. February four armed D. at 4:50 A.M. on the bank’s killed Curry Thompson no sub- that he need make from a .45 calibre was warned shots gun. Curry statement, from an- he said could be came in that what machine right lawyer. used, entrance, two and of cowed the tellers with consult other scooped Agent up Foley joined cash later. loaded revolvers them minutes agents’ get Despite a It of the tellers’ booths. took few minutes to two gun policeman, car, thirty-five uniformed drive battle with a minutes to headquarters FBI at 201 East 69th would off.” A.M. be “better At 8:16 again coffee; Manhattan, Curry given Street, he where arrived was de- at about A.M. clined a roll. 5:30 the offer of brought immediately Curry ato questioning then to locat- turned interviewing foot room con- ten taining twelve They Wilcoxson and Nussbaum. chairs, desks, five four or two large time, were still com- at the facing filing cabinet, one window one prior mitted other robberies to the La- opposite The room east the door. fayette robbery, Bank and in fact later Curry, Agents Foley, occupied by Putz committed at least three robberies bank Curry Keefe, Lesson.1 and Detective Philadelphia in burgh and in suburbs of Pitts- immediately “strip-searched”; he pic- in 1962. was shown belong- completely and all disrobed himself, tures of Nussbaum and Wilcox- thorough ings given a examination. Daily son which the New York News had He After the search then dressed. published night because Agents statement, before issuance of arrest warrants. again Foley him that and Putz advised them, then admitted that he knew but he statement, any- no need make deny having continued to taken thing court he said could be used Agent robbery. Foley, question- legal against him, and could ing Curry, general outlined the scheme Curry replied that he wanted counsel. during robbery but, period, this lawyer lawyer. had a call a and that he according go testimony, to his did not in- Foley telephone offered him the use of a explicit detail. desk, replied, Curry “I and then A.M., Curry At 9:47 was taken attorney.” don’t have an by Agents bathroom Keefe and and Putz forty-five in- The first minutes photographed. Curry was then claims Curry’s terview centered around ground: back- agents that four took him into the bath- schooling, parents, family, and, they room appeared because set to Agent history. Foley personal and was him, beat he told them he would question. A.M. one At 6:32 confess. Both Keefe and Putz testified Curry was served coffee. that no such threats were made and The interview then turned to the bank Putz, room, merely pointed in the men’s robbery Foley explained why itself. Curry’s out some of in the inconsistencies thought Curry had been involved time, statements. At about anything Curry reply. and asked if agents Curry became convinced that was Curry taking robbery. part denied in ready to disclose what he about the knew brought agents The the names of Wil- robbery. question- coxson Nussbaum and into Curry agents At 9:56 A.M. and the two ing, explaining that the FBI knew that returned to the interview room and the Curry prison them had met and that questioning Curry continued. At 10:00 Curry’s from Wilcoxson called house stated, “Yes, it,” pro- I inwas on Curry the New still York Statler Hotel. part robbery. ceeded to admit his in the taking part robbery denied Agent Foley took the information down denied that he knew and Nuss- Wilcoxson form; in narrative after he finished Apparently questions baum. most of the story, Curry read the statement about Agents period were asked signed ten minutes. He then it at 11:18 Curry Foley During and Putz. this time writing A.M. after at the end sentence along something was “Be told the lines of by Foley dictated you off,” the statement was truthful but will be better true there was no elaboration as how correct. Curry room about tive Lesson left Rostow also Detective listened in after Sutton, began partner, complicity (about His Detective to tell of 9:15 A.M. questioning A.M.). for one-half 10:00 listened to None of the detectives part beginning questioning. Detec- hour about A.M. took 10:00 agents allegations had threat- Meanwhile, Commissioner Shiftman Curry’s mother’s and his have son ened to

had been advised arrest and away held agents children taken six foster ready had told the he would be coerced arraignment were not statements that the any way. about 1:00 P.M. Curry “is noted that He also now driven to the office of the United I have ever Attorney arriving one of smartest witnesses Brooklyn, States experience.” my length seen on the stand about noon. He talked with his February Signed dated confessions mother in the office an Assistant report confession Attorney of an oral arraign- and 15 and States until his February evi- just into received ment were before 1:00 P.M. dence the first Upon arraignment, Curry again warned that he was entitled to remain suppress was renewed motion to legal silent counsel. The proof and additional second trial Commissioner informed him “We Dooling. before was taken get Legal will Society Aid to defend Dooling “Physical force found that you you if money provide have no specific promises found to have are not yourself Curry replied, with counsel.” defendant’s will.” [sic] overcome “I my attorney.” want to furnish own primary “a ob- He found that while also following On day, Curry jective interrogation was inter- was to obtain viewed at guilty Federal House of Detention of his in- admission Street, at agents. Manhattan, by West possible,” FBI volvement and a confession gave spent He oral an statement fill- “a of the time substantial ing in getting some biographical the details of on the crime. on data Other interviews February getting were held on on Wilcoxson and in data himself 15,16, 21, differing However, March 6 and 7. Written state- Nussbaum.” signed ments by Curry sup- Judge Abruzzo, February held (the original statement), 15, pression required 16 and two reasons: was for Curry obligation 21. interrogated was under Curry no to see been because had counsel, visitors at per- West be- Street and his the advice without necessary agents’ mission was for had been the initial statement cause entry. beginning unnecessary At the during period each elicited rights hearing interviews he was delay preliminary warned in prior of his ato counsel remain 5(a) silent. of Rule the Federal violation of Criminal Procedure. United Rules During period, Curry consented to D.C., F.Supp. 773 Curry, v. States repeated adjournments preliminary of Dooling time, At the same hearing before the United States Com- government parties that the advised February missioner. hearing The was parts the statements could make use of adjourned one Curry week to afford time Curry guilt if to the issue of collateral to secure Curry appeared counsel. un- testimony was if took the stand and his represented a second time and the matter citing statements, such at variance with put was Curry over to again March 7. States, 347 U.S. Walder United appeared counsel, without and the hear- 354, 98 L.Ed. 503 put was over until March when appeared he with counsel and waived a above, Curry did As we mentioned hearing. At each appearances of these behalf, testify and on two in his own repeated Commissioner made offers government was collateral matters Legal counsel, Aid but these were re- Curry’s suppressed permitted to use by Curry fused because he wished to se- testimony. impeach statements to attorney through cure an his own means. why Curry statements in his was asked agents A Curry’s mention suppress motion to he did not to the FBI state- Cunningham Streets, passed ments to upon played the FBI was first by Judge met Abruzzo, why he had he said that Pettit denied the mo- once, Cur- only rejected tion. in Curry’s October Abruzzo Martin had ry he never replied and testified that had not in- narcotics that he wished gov- illegally. possessed The persons narcotics FBI did not whom-the criminate testimony implicated. also then introduced know was ernment were He police years previously, nearly agents that he two asked told the whether he petitioner, from had narcotics had false moustache on December seized worn a suppressed attempt day evidence had been abortive first Lafayette (Curry prior had obtained to rob Bank because petitioner’s he an search of on direct examination that unconstitutional testified Supreme held that such Court a moustache on De- home. did not wear such not, 8).2 an uncon- replied use fruits of he had a limited of the cember He Agent per- although seizure was stitutional search he was not certain. ; must be free while a defendant after Cur- missible Putz recalled stand to the deny elements ry’s testimony stand and to take the testified charged agents he is with which had worn of the crime had told the that he testimony per- will without fear false affixed Nuss- moustache black prosecution to introduce just mit the baum to the December at- illegally thus un- tempt. obtained him Putz from also testified government’s agents case-in- questioned had about Cun- available Agnello Court, citing ningham chief, said and Pettit because Wil- United known Nussbaum and associates of justi- (1925), no there is he 70 L.Ed. coxson and that said letting Cunningham affirma- for a defendant fication Pettit or since seen According testimony tively perjured as to meeting resort to them Chillicothe. upon agents Putz, Curry collateral reliance matters also told the challenge government’s inability Martin friend Nuss- knew credibility. baum. proper hold it was governs The Walder doctrine permit the district this use of court government’s permits use here and reasons. statements two on his cross-exam statement although First, government cannot government Although the ination. illegal use the fruits of action to estab ruling precluded by district lish the elements crime with which using its direct case Cur court charged, defendant the defend participated ry’s admissions that testimony contrary facts ant offers robbery, attempted to the when by disclosed evidence which has been construct an alibi inconsistent suppressed, government may the original FBI, gov the the statements to illegally truth this ob interest of use point out inconsistencies ernment could tained evidence facts col to establish such whether ad as to collateral items as guilt. of lateral to the ultimate issue parties implicated and ditional States, 62, Walder United U.S. on a moustache whether had worn 354, S.Ct. 98 L.Ed. 503 government prior occasion.3 Thus the a petitioner may any In the which Walder the took stand make use of evidence not during suppressed make out his trial illicit transactions has in order to been U.S.App. States, during cross-ex- 3. v. United was also asked Johnson (2-1), 69, (1964) is FBI F.2d 163 the D.C. amination whether he told There, distinguishable the facts. a on its that he wore false moustache morning to crime this was defendant’s confession the of but December being tried used he was to withdrawn before answer. The testimony important impeach trial as to because of the moustache was charged in the his indictment; the events version at the bank said witnesses challenged thus, “directly Negro it How- robber wore a moustache. innocence, merely credibility, ever, dispute not the defend- over whether a disguise prior F.2d at 166. a the defendants.” ant a similar wore impeachment possession is, prior a the sort of This is not like the occasion s per Walder, which Walder issue to matters collateral collateral narcotics going guilt. credibility mits. to and not to enough strong 1684, always part is to have a case which been upon guilt jury pass guarantee. or innocence. the Fourth Al- Amendment’s And, likewise, though disputed,4 the defendant’s denial has assertion been although crime be dis- Mapp the elements to was the first case by puted exclusionary evidence which is fruit of hold that rule is a Due illegal Agnello requirement action. See v. United Process of the Fourteenth government States, supra. Amendment, But once the we do not think presented prima exclusionary has facie ease without extension of the rule re- using evidence, may sup- quires per principles such use the se an alteration of pressed challenge previously applied prosecu- evidence truth to federal reliability of the defendant’s asser- tions. tions as to collateral matters. Neither Walder nor of the cases directly interpreting it indicates that the Walder case involved admissi- tangible principle admissibility bility of limited for col- evidence obtained through inap- impeachment purposes lateral is an unconstitutional search plicable However, when evidence is excluded be- seizure. the Walder doctrine unconstitutionally applied An permit cause obtained. has been the limited rule, exclusionary whether based on con- admission into evidence of incon- principles not, statements, by stitutional meant sistent made a defendant primarily protect period unnecessary those accused of detention 5(a) crime from unfair or unconstitutional which violated Rule of the Federal strong- removing police procedures by Procedure, Rules of Criminal exclud- police prosecution’s proce- ed est incentive from use in to use such case-in- by McNabb-Mallory dures. chief Such rule often results in ex- doctrine. cluding highly States, U.S.App.D.C. Tate v. reliable evidence in order United (D.C.Cir. 1960). to ensure 283 F.2d that those who enforce the law See profit violating Lockley also will not from the law. 106 U.S. App.D.C. 163, But it (1959) does not follow if such evi- (dissenting argues opinion). Curry purpose, dence is excluded for one first purposes. inapplicable must be the Walder excluded for all It is doctrine is enough illegal police activity whenever to deter directly Constitution re- government using quires prohibited evidence, exclusion second activity implicitly Walder obtained such was therefore prove Mapp Ohio, overruled its direct case. of this v. State of view adequate penalty, govern- deny 6 L.Ed.2d 1081 (1961), Mapp ment use of im- because statement the exclu- sionary peach contrary testimony rule at issue in Walder a impediment unnecessary guarantee, Fourth would be an Amendment’s finally inapplicable search for that Tate truth. because evidentiary it dealt with an rule where- Supreme We think that statements were excluded be- way Court’s decision in no Walder is cause were obtained in violation of subsequent modified the decision in right his Sixth Amendment to counsel. Mapp. addition, justifica In we find the agree letting testify We do not tion that the Walder for doc- a defendant with any way by Mapp trine inwas weakened out cross-examination as to collateral excluding reliably v. impeached State of Ohio. The rule matters which can be unconstitutionally greater suppressed no seized in a where evidence prosecution had, according federal is an admission made in the absence of Mapp itself, guaranteed by author of U.S. at 646- 367 counsel Amend- Sixth Friendly, Rights 341, (1914); See The Bill of as a 34 S.Ct. L.Ed. 58 652 Procedure, Agnello States, 29, Code of Criminal 53 Calif. v. United 269 U.S. 46 929, (1965); compare 4, L.Rev. 952 n. 118 L.Ed. 145 States, 383, Weeks v. United 232 U.S. February 13 statement of prior admis- if a ment. It is true unconstitutionally period of un not taken was found to be sion were arraignment necessary delay coerced, possibility before the substantial 5(a), Rule Federal Rules reliable than violation is no more the admission Procedure, thus it should contrary testimony accused Criminal under the doctrine proceed have been excluded not lead a court to trial should 449, Mallory impeach- 354 U.S. permitting caution in its use for 1356, purposes. People 1 L.Ed.2d 1479 Under- ment See questioning" as wood, Cal.Rptr. demonstrated and As the 61 A.C. found, agents Judge Dooling where, were (Sup.Ct.1964). as P.2d But using solely here, good secure not the interview there no reason to believe Curry. The location a confession that a inconsistent statement was Wilcoxson, voluntary, were of Nussbaum and find the not accurate and we importance. controlling. large, prime principle still at was of Walder questioning portion A substantial Finally, the Walder we find pertained to their whereabouts though principle applicable even background. addition, Curry’s In instructed, was not the Walder as was agents could not sure at time be jury, must rebuttal evidence be Curry’s part in arrest had taken he only. impeachment purposes used for robbery. had bank Witnesses preferable While it would have been Negro tall and said that robber was limiting instructions, have had such none fairly light-skinned whereas Curry. requested by were “The better not re The record does short dark. opinion opponent is that the evi information led to issuance veal what instruction; dence must ask for Curry, of arrest Nussbaum warrants for otherwise, may supposed to have Wilcoxson, proper it but was necessary protec waived for his agents Curry, in a noncoer Wigmore, p. tion.” 1 Evidence warning manner and him of cive after (3d 1940) original). (emphasis ed. rights, his constitutional to determine The defense not remain silent whether was sufficient evidence there hopes that the district fall into court will charge. possible reversible error where error By begun 10:00 A.M. cured, passed upon could have been played to recite the in the rob be, by objection.5 properly if need timed bery played by parts Nussbaum and the Indiviglio, Un ited States v. this, and Wilcoxson. before Even (2d 1965). F.2d 276 Cir. given more knew indications that he telling. opinion, earlier than he At our reason there a second why point, even if had been the use of a Commissioner statements was available, upon improper. not incumbent We find that the state interrogation, interrupt FBI “as a ments were not taken in violation rights investigation progress, under the Sixth Amend fruitful 5(a) ment under the Federal momentum was not to Rule valuable Vita, Rules of Criminal Procedure and that lost.” United States v. excluding 1961), denied, them the trial court erred in Cir. government’s L.Ed.2d from the case-in-chief.6 addition, infra, because, finding, be ad- 5. In our if the statements would trial, Curry generally admis- should been ruled at a new statements missible any purpose, gain need could of little satisfaction sible for obviates course limiting im- used instructions. from decision properly here. doctrine under the Walder government us not asked 6. the has While Lockley Compare 106 v. United Judge Dooling’s decision reexamine to U.S.App.D.C. 163, 917 F.2d 270 gov- suppressing in the the statements (1959). appropriate case, do to so it is ernment’s

913 Febru- on ambiguous for request counsel (1962). delay reduce state The to subsequent trial ary “infect his writing Curry 13 not did and to have read ment to fundamental of ‘that sign unnecessary. with an absence it likewise was concept very of to the Ladson, essential fairness United States ” People of State justice.’ (2 Crooker 1961), denied, 369 Cir. U.S. California, U.S. L.Ed.2d 789 (1958), quot- 1287, 1292, L.Ed.2d may now turn to whether We Illinois, 378 v. State ed in Escobedo Curry ques in the manner which L.Ed.2d 478, 491, right We tioned violated his to counsel. v States also United See that, it did we find hold that not because 1965), Drummond, Cir. 354 F.2d 132 Curry case, on the facts waived many in where circumstances rights whatever he had to remain silent the in- respects in to waiver similar interrogated only after he had to be stant case. Apparently, had the benefit of counsel. Jury’s Sen- Curry II. Determination on his own decided that it would give appearance tence. for him be best to cooperating fully FBI in with the manner in Curry attacks next Although investigation. their question of jury considered the beginning question stated at the § his Under 18 U.S.C. sentence. February lawyer 13 that he guilt or in- jury (e)7 determines lawyer, and that wanted to contact and, the defendant nocence of agents’ respond he did not offer conviction, that he direct event of object telephone of a and he did not when penalty. At death receive the they proceeded questioning. jury si- issues both trial considered Moreover, Curry was warned of multaneously. contends rights February before the 13 interview refusing judge hold a in to erred trial subsequent each and before of the inter jury two-stage would which the trial in granted agents views which who sentencing after relevant to hear matters him at visited West These resolving Street. later a verdict returned ap place- interviews took between his guilt. question under hold pearances before Commissioner Shiff case, Judge all the circumstances man, continually apprised him that Dooling discretion not abuse his did legal immediately counsel was available unitary put conducting To this' trial. and that it was in his best interest terms, did not other legal oppor secure the earliest counsel at Curry’s defense, particularly prejudice warnings, tunity. specifically In the these light face of never fact that he Legal accept requested refused to Aid assist cooperate ance and continued to with the a trial An initial is whether granting by giving FBI interviews and judge power a two- direct has the signed statements. these Under circum 2113(e). stage Historical- trial under § considering Curry’s previous stances and pow- ly, authority for such a is no there experience law, with the criminal 2113(e) group of a er. is one Section agents Congress respond failure of the has in which statutes8 7. “Whoever, 2113(e): years, punished by § 18 U.S.O. if the ver- ten or death committing any jury defined in this offense dict shall direct.” so section, avoiding attempting in or or degree (first mur- § See 18 U.S.O. apprehension avoid commission death unless the der—“shall suffer qualifies offense, freeing of such himself or or adding thereto verdict its attempting to free himself arrest or punishment’ ”); capital 18 U.S.O. ‘without offense, confinement such hills (kidnapping victim harmed § 1201 where any person person, * * * forces accom- punished death —“shall be pany him consent of without such rec- shall if the verdict so (train imprisoned person, ommend”); not less shall than 18 U.S.O. 914 (Pro- ameliorated the harshness of a manda Penal Code 210.6 See also Model §

tory penalty by giving 1962). jury May 4, posed Draft, death Official respect discretion with to whether the- poses unitary trial Since the imposed. death sentence shall be See problems, fundamental we do these States, 303, Winston v. United U.S. 172 Congress interpret the silence 310, 212, (1899). 19 43 L.Ed. 456 precluding the trial this judge Congress There is no indication that confining presen the first thereby contemplated two-stage trial guilt jury tation to the to the issue of guilt And, sentence. while the right fair the defendant’s to a trial when Supreme passed Court has never direct jeopardized by unitary would be ly question, it has dealt with and guilty returned, If verdict upheld assump these statutes under the jury same can hear such additional then they provide unitary tion that for a government and de evidence as the States, trial. See Smith v. United might endant introduce before wish to 1, 991, U.S. 79 S.Ct. 3 L.Ed.2d determining the sentence. (1959); States, Andres 740, 880, U.S. 68 S.Ct. 92 L.Ed. 1055 However, require we think unwise to (1948). two-stage every trial in case under 2113(e) Only and related statutes. § Nevertheless, trial three of nine members of the District highly unsatisfactory. can be The most sug sitting of Columbia banc Circuit problem serious arises the trial when gested two-stage trial re judge compelled either to exclude evi quired analogous provision under an intelligent disposi dence relevant to an D.C.Code; Judge Burger in his sentencing question, tion of the or to ad separate opinion pointed potential out mit knowing such evidence trial problems might procedure which this guilt thereby opened to matters Frady raise. v. United 121 U.S. prejudicial and otherwise inadmissible. App.D.C. 84, 78, 115-116, 348 F.2d cert. Third Circuit has held in cases denied, 909, 247, 382 U.S. “grave prejudice,” admission of such (1965). generally Note, L.Ed.2d 160 See sentencing extraneous evidence amounts System Capital Cases, The Two-Trial process. a denial of due See United (1964). Moreover, 39 N.Y.U.L.Rev. 50 States ex Banmiller, rel. Scoleri v. suggested two-stage has been (1962), denied, F.2d 720 828, cert. 374 U.S. always trial does not work to the defend 1866, 83 S.Ct. 10 L.Ed.2d 1051 advantage,8a ant’s loath (1963); we are Thompson United States ex rel. compel unwilling defendants to submit to Price, 918, denied, 258 F.2d procedure which is devised for their L.Ed.2d may prejudicial benefit but which (1958). And four States have reacted to application particular its to a Giv case. problem by requiring two-stage many en the considerations which trial Law, statute. N. Y. Penal Con- necessity affect the for a sol.Laws, (McKinney c. 1045-a § case, considering ques Supp. 1964); each 190.1; Cal. Penal Code § desirability Conn. (Supp. 1963); Gen. Stat. tionable 53-10 of this untested § Penn. Ann. Stat. tit. technique, we think it best to leave wrecking where adequately penalty phase death caused—“shall be for and have subject penalty also to the sophistication death or to exhibited lack of concern imprisonment life, for shall in what advanced as facts should be * * * direct”). Compare its discretion mitigating. so hand, the other On (rape death, U.S.C. § 2031 prosecution complete suffer —“shall has taken ad imprisonment years or vantage penalty phase term of at and has life”). tempted present to marshal and to aggravating 8a. “The California all of the circumstances dating experience, back Note, that exist.” N.Y.U.L.Rev. has rather been that defense neglected prepare counsel have often case, a later time until counsel question of trial the discretion the to would be perhaps our choices when court. is, of choices apparent; that more Judge Dooling’s find no error We more little bit procedure be a would handling question at of this us the to at are to than clear us raised defen- trial. The issue was present time. pre-trial in- dant’s to dismiss the motion Very well.” Court: grounds, one on two of which dictment given power “The that absolute ob made no comment counsel Defense jury by 2113(e) fix the 18 U.S.C. to suggestion.8b § jection to this penalty the death violates the constitu- case, government’s of At the close deprivation guarantee against of tional solely during relevant no evidence which Judge process of life without due law.” introduced, de- sentence was to the initially Dooling ruled that statute again attorney his renewed fendant’s constitutional, but he noted that He the indictment. to dismiss motion might problems unitary of trial raise charging alleged the count that now relevancy “the will standards that dis- 2113(e) be should a violation § against Curry,” prevail in United States possibility aof death because the missed disposition ultimate he deferred a fair trial deprived sentence the motion. compelled to him take it in that sympathy. jurors’ gain again requested to The defendant dis- stand ruling Dooling Judge adhered to position days of his motion two later He during pre-trial colloquy. Judge was constitutional. the statute that another interpret motion Dooling question the defendant’s pre- not did still found the two-stage trial, de- requesting mature, as but he that be stated “it would stated, “I point counsel fense unthinkable such matters [evidence time, this only motions at brought no further have relevant to sentence] were your Honor.” the normal criminal trial of general case,” issue criminal Dooling Judge had shown After suggested precedent “that if there is trial, and after sympathy for a * ** serially for it consideration of consid invited government counsel undertaken, [sic] verdicts be and that , procedure, we think the of that eration the second verdict should be restricted for a sev have moved should defendant based, matter of sentence and be guilt and sen issues erance be, if need on additional evidence which govern the conclusion tence appropriate.” point, gov- At this was still he felt that case if ment’s ernment counsel stated: unitary He disadvantage Dooling Judge to sever expect not Honor, could- “Your is the Government’s aponte, particularly sua issues these to offer intention * * * Judge some guilt had manifested when or innocence [of] issue power order such proper procedure As con- doubt under 2113(e). See United sentence, under § I would submit sideration Dalhover, 96 F.2d consideration could well States this Cir.1938) (dissenting opinion). agreement deferred of both Hoey, authority Mr. gov- during 8b. At did States no time the trial Attorney for suggest penalty. States is the United On ernment the death you district, the Gov- contrary, government to tell this pen- death not seek the ernment does dear it did not ask the Again against alty I impose summation, penalty. the death defendant. solely say you government the decision counsel said: supplied.) (Emphasis you yours.” presume to “I do not advise Dooling of this [regarding penalty]. reminded the This is death (cid:127) charge, suggestion and of job. solely your re- authority sentence a death course I do however Attorney turned. of the United General Dooling agree aspects trial, the am biguous 2113(e) defend And manner in is constitutional. presented appropriate defer con ant to the trial think it was we two-stage court, long the and unbroken his sideration whether tory deferral, unitary necessary. was After this the trials under statutes, unwilling government, other its stat federal we are accordance with intention, unitary to conclude trial so ed introduced no evidence rele that the only sentencing prejudiced Curry’s presentation of vant to and the defend his Judge Dooling specifically requested defense his ant never a two- that abused stage allowing proceed. all discretion in trial. Under these circumstanc it to es, Compare we think it within discretion United States ex was rel. Rucker v. (3 Judge Myers, 1962), Dooling, 311 F.2d had observed the 311 Cir. cert. denied, government’s nature case and the U.S. reject strategy, unsup L.Ed.2d 1064 defense to ported Curry’s by assertion counsel that Jury III. unitary The Selection Panel. put trial would him to force the defendant on the stand.8c Once Cur challenges the method' of select- ry stand, testimony took the con ing juries in the Eastern District New cerning background con York, claiming systematically ex- victions, gave during which he his di Negroes jury cludes service. alleges testimony rect but which now Dooling hearing held a and made exten- prejudiced innocence, his claim of was findings complete sive and on this issue. available to either side and cannot be He concluded that no intentional exclu- prejudice flowing considered from the Negroes any persons sion of or of class of unitary trial.8d manifestly place had taken that no economically workable and feasible meth- We think we should note representa- od that would better secure a the future where it is clear that a neglected. jury tive list had been requesting trial, defendant is agree. preferable grant it would be such a request. However, dangers inherent Essentially, Curry’s claim is trial which lead us to that Negro population the Eastern present conclusion were not District of is New York centered trial, only where no evidence relevant “islands” of concentration and that the sentencing by gov was introduced jury compiling method of list failed ernment where in fact did adequately disprop to account for this not recommend death. When we con that, although We find ortion.9 method for sider the careful manner in which compiling list does guarded Dooling against unevenly completely prejudicial take into account the 8c. opinion, reading there, coxson our and Nussbaum said he of the entire was transcript im- defendant said he was not.” creates unmistakable pression the death sentence was days great 8d. bulk 1% never serious issue case and pages testimony of direct Curry’s allegations contrary establishing his aimed at alibi. The Indeed, to this court are frivolous. solely testimony conceivably relevant Curry’s argument tenuous nature of Curry’s prior to the sentence concerned he was induced to take the stand is convictions; such criminal by admission, post- revealed in a commonly dur- introduced defendants support merely trial memorandum in testimony of his mo- their direct trial, testimony likely new tion for that his neutralize area of cross-exam- Thus, Curry’s only necessary prove con- ination. serious his innocence: tention is that he induced to take “Certainly, defendant was unable stand, which, as ex- a contention testimony the trial meet Wileoxson’s above, plained reject. we by taking and de- other than stand Negro. per nying participation 9. Nine cent of the District in the crime. Wil- group. is axiomatic any particular It population, does not violate distributed repre “proportional this late date requirements. constitutional intentionally or sentation” method registration Voter lists form basis jurors attempting on the basis to select ju- per prospective for 99 cent racial, religious, or social economic rors.10 Names are random chosen grouping required Constitu is not assembly from the voter list each dis- unworkable tion and indeed would an comprise trict in the Eastern District See, g., policy. repugnant e. petit of 7000 list to 7500. This Flynn, 216 F.2d States v. replenished basic expanded list 1954), denied, 348 Cir. by qualifying the need arises additional 295, “[T]he 99 L.Ed. 713 S.Ct. persons randomly selected from the voter only jury requires Constitution a fair registration recently plan a lists. Under regard selected race.” without Cassell adopted by Jury Clerks, these addi- 282, Texas, 286, v. of 339 U.S. 70 State only tional names are from selected a few 631, 629, S.Ct. 94 L.Ed. 839 assembly districts in the District any sample group small of a at one time. in- The Clerks have (here, 3,000,000 voters), prob- size it is personnel sufficient funds and to draw on sample a able that not a will reflect random relatively basis the few names community. And, year cross-section of of added each from all the districts. course, assembly However, long the fewer districts period time, over a of greater system designed sample, are included in the to insure that each assembly homogeneity panel, since mem- district repre- will contribute a racial, religious bers of persons sentative the same number of jury to the Curry’s groups congregate argument list. social tend to appears chief geographical Therefore, be that same those areas. added in this manner years expected tois recent be be there will a dis- not come from districts high parity Negro population. with a between a cross-section of model community sample compris- and the petit jury “box” or “wheel” here petit jury list, and more so with juror at contained least 300 cards chosen ultimately those who are called for serv- at random from the list in the man- during particular period, ice one or those required by ner 28 U.S.C. 1864. The assigned particular part, to a Curry’s served second particular those chosen on to serve a among trial was chosen persons from 300 jury. jury duty 4, summoned for on November 1963. persons Of the 170 these While a desirable to include upon jury entered service, two or three larger jury list, number of on names appeared Negroes. to be One hundred and to choose additional names from ten veniremen were sent assembly districts, Jury more Clerks the court in which case was only required can work within the pending. appeared None of these to be personnel limits of funds which are Negro. them, provided available that minimum Although standards are met. total ex facts, conclude, One these we par clusion or token inclusion of Dooling, did has not juries ticular race all on district established, must, as he see Swain v. systematic discrimi Alabama, 202, State of 380 U.S. 205 Texas, nation, see, g., 209, e. v. Smith State 824, 85 (1965), 13 L.Ed.2d 759 prima 85 L.Ed. U.S. facie case of discrimination. (1940), imperfect system “an appears designed The method of selection purposeful equivalent discrimination against neither to favor nor discriminate denied, Cir.1962), upon registration 2d 478 Reliance voter lists 10 L.Ed.2d acceptable obtaining 83 S.Ct. is an U.S. lists method Greenberg, (1963); qualified jurors. United States v. v. United States (S.D.N.Y.1961). E.Supp. Agueci, 817, 833, 834, A.L.R. Ala sister and sometime fiancee. She had on race.” Swain based State given bama, at 830. statements consistent her trial with testimony Jury, to the Grand the FBI support by Curry to In the cases cited Gurry’s trial counsel to trial. Negroes contention, excluded his At testified trial she associa- long his juries in with from districts Nussbaum; tions Wilcoxson discriminatory conduct. of such tories money Nussbaum; receipt from distinguished by cases was This class of claims, robbery, after the Flynn, court in United States money entitled to Nussbaum supra. Curry establish has failed to Wilcoxson; receipt of a second-hand systematic be “purposeful, non-inclusion automobile from Wilcoxson after the rob- would indicate of color” which cause bery; trips and his to the Buffalo base place. Cassell has taken discrimination operation before and after the rob- Texas, S. 339 U.S. v. State bery. concurring). J., (Frankfurter, Ct. Miss Brunner’s recantation related justified an inference that Nor has he solely portions to two place other of her testi- has show taken discrimination ing mony first, : told her that he absence of Negroes continued gone bank, had into juries Compare armed Wil- Smith with District. coxson, robbery Texas, to commit supra; while United States v. State outside; (5 Nussbaum Wiman, second, waited that F.2d 53 ex rel. Seals v. overheard, Day Thanksgiving she 1962), cert. around denied, Cir. robbery, Curry to the and We there Wilcox- L.Ed. 729 discussing agree judge plot son elements that on the district fore with telephone, Curry prima that Wilcoxson later told has failed a to establish forget heard, her to what she had in the selec and facie case of discrimination Curry eavesdrop- her juries told that her District tion the Eastern ping required change plans. a York. New viewing After Miss Brunner both at New Trial. Motion IV. Judge hearing, Dooling trial Curry trial for a new moved found that the recantation “is uncon- (Rule 33, Pro Rules Criminal vincing Federal in the extreme.” There no by alleging cedure), Valerie disagree recantation reason for us to this find- with Curry against testimony ing. Brunner of her by trial, testimony Michael new judge as here the district When Bobby Quinn and Earl McKenzie against defendant all resolves doubt to them that Wilcoxson admitted testimony the trial and determines Judge Dooling Curry. held an framed recantation, impeached is not hearing and found that: extensive try anew be need to the case is no there is not “Miss Brunner’s recantation Flynn, jury. v. a United States fore credibility of her credible and reargument D.C., F.Supp. 412, de testimony her trial unaffected (S.D.N.Y.1955), nied, F.Supp. 742 post-trial declarations testi- plausibility of assessed Dimock given weight mony. can to No deciding alleged recantation before an testimony Quinn-McKenzie trial, grant ap we a new whether to merely fanci- as whether it is treated pro procedure Such a prove here. report ful, or as credible Wil- a special the hear merit where cedure has subsequent coxson’s statements that ing judge presided at and thus under oath at the trial what said alleged re able to evaluate better untrue.” was Lee, On United cantation. See States findings. denied, find no in these error (2 Cir.), 201 F.2d 722 L.Ed. twenty Brunner, years U.S. Valerie (1953); hearing Harrison mo- old at the time of the 1951). Cir. trial, foster tion for new Quinn trial, Mitchell and Peter W. at the as have and McKenzie testified lodged Roger them on hearing that, J. who were Hawke while West Street charges jail awaiting on various brief. sentence Wilcoxson, robbery, met bank Affirmed. Curry he had framed who confided that HAYS, (dissenting): Circuit Curry fact, withdrawn opinion previous I would reverse our robbery. before the commission new and send back for a trial. the case sentencing after After their own acting pursuant jury, Whenever been out of Wilcoxson had transferred guilt statute, in- federal is to decide begin serving life West Street case, capital and is accord- nocence Quinn sentence, permitted and McKenzie choosing responsibility ed the between Curry call at the them witnesses imprisonment pun- as the death life hearing. imposed, ishment course of en- Judge Dooling found that “The testi- lightened and efficient administration Quinn mony is not believed” and of the criminal law best be served will “ * * *(cid:127) testimony McKenzie’s by requiring hardly attempt credible.” no original panel opinion In our we held hearing produce at the Wilcoxson or that “the failure of defendant to ob- him as a called witness ject to the trial at the outset” court. Had wished to substantiate precluded finding of reversible error. allegation Wilcoxson had altered Our attention called has now been again story that he would do so —and following statement of counsel: testify called at a new trial — “Now, may you I ask [now?] should have made efforts to establish give directly it further consideration or do from Wilcoxson. you any believe further consideration testimony Finally, if even necessary regard this with time true, Quinn of McKenzie were problems you stated the bearing on the new evidence day you, other occurred to aris- merely guilt Curry, of but or innocence my out motion of to dismiss the bearing on credi evidence Wilcoxson’s indictment, particular as to the bility. alone suf is not Such evidence the trial the sentence of of obtaining a for basis new ficient possibility separate apart as a Switzer, Cf. United v. 252 States (Em- the trial the crime.” from of denied, 139, Cir.), cert. 357 145-146 phasis added.) 1363, 922, 1366 U.S. 2 L.Ed.2d 78 S.Ct. “not,” However word we read the (1958). part last of statement indicates F. request Walter R. Mansfield and Robert as a counsel intended his motion assigned Dooling Morten, Curry, separate counsel for for trials. fully of, of rendered devoted and effective service aware the nature reason appeal request.1 new for the and on the motion for a relating During proceedings to the com 1045 of Daw come in here the Penal technique position Judge Dooling jury, noted: as a of common law matter guilt Curry, trying example, Mr. for offers on the issue of “If the case first, background, sending out as and then again, privations youth, perhaps supplementary all of other evi- sentence, things upon be relevant dence on the should that would sen- issue tencing, count then can that be met an there a conviction on three?” (Emphasis added). attempt the United Preceding opening previous statement States to offer evidence of Dooling prosecution, observed: conviction? suggest suggested my possibility “That mind that “Does all it, maybe precedent there is and arrived in such a case as of such to be two at without the assistance stat- there have verdicts? And utes as of the New York we like it or not. Section Section 1040 whether does 920 significant government’s case, step As close ishment law a ” * * * goal.

appellant’s worthy counsel said: direction of a your me, Honor, “It seems to incidentally note, Id. at 77. The second gives present statute which substantiating citation, without making duty the decision coun- observed that California “defense as whether or not there shall neglected prepare ade- sel have often capital punishment, places upon the quately penal phase.” The Com- unique improper a most defense mentary 201.6 the Model Penal Code throughout burden the whole (Tentative 1959) 9, con- at 75 Draft No. beginning the Gov- Cali- cluded that the results under the ernment’s witness to witness- first eminently fornia “are satisfac- statute put think, is, es that we This I tory.” forth. very situation, creating unusual great disregard majority urge upon you deprivation what I is a commentary weight author of case added.) (Emphasis of a fair trial.” ity, for the establishment which calls regarded These remarks must be See, mandatory trial rule. renewing counsel’s earlier motion. U.S. g., Frady United 121 v. e. App.D.C. 91-93, 84, need not 85-87, decide 78, whether a 348 F.2d 1, denied, trial is so unfair as to 382 p. de particularly constitute a n. cert. 91 privation process. 247, due See 15 L.Ed.2d 909, United S.Ct. U.S. States ex rel. Banmiller, (1965); Scoleri v. rel. Scoleri States ex (3d 1962), denied, F.2d 720 rel. Cir. cert. ex Banmiller, supra; United States 828, 1866, 918, Price, Thompson 10 L.Ed.2d 258 F.2d (3d We need Cir.), denied, hold that 358 U.S. 2113(e) requires (1958); U.S.C. § Model a two- 3 L.Ed.2d stage trial, stage (Proposed first concerned with Official 210.6 Penal Code § guilt innocence, and, 1962); Wigmore, if it Evi May is deter Draft, 1940); mined (3d that the guilty, defendant 194b, a sec 660-61 ed. dence § stage ond penalty. to fix Denno, 378 U.S. cf. Jackson v. 12 L.Ed.2d n. Although majority concede legislative nor the neither statute suggest history any pro bar to such a punish- determination of Rational they form, leave the cedural sentencing au- requires ment two-stage a of of trial to the discretion thority access to information wide scarcely court. the trial There is mitigating McGowan of nature. authority majority’s suport to con has observed: majority clusion. The senting a dis cite upon his jury’s deliberations “[T]he Frady opinion in v. United punishment less are [the defendant’s] 78, 109-110, U.S.App.D.C. right adequately informed if his than 84, 115-116, denied, 382 348 F.2d meaningful- not been of allocution has 247, 15 L.Ed.2d 160 mitigat- ly and if facts of a available notes, (1965), and two student The Two- Frady it.” nature are not before System Capital Cases, Trial in 39 N.Y. States, supra v. United (1964) U.L.Rev. ency and Executive Clem concurring.) J., (McGowan, 91-92. Capital Cases, in 39 N.Y.U.L.Rev. (Proposed See, note, Penal Code 210.6 first after Model The Knowlton, shortcomings 4, 1962); Draft, May pointing Official out several Jury Capital two-stage adopted by in provision of Discretion Problems trial New Cases, 1135- York, 101 U.Pa.L.Rev. concluded “the overall scheme capital pun- to the of these amendments based, Law, be of sentence matter serial- Penal that consideration be, undertaken, which ly if need on additional evidence and that verdicts be apropriate.” be restricted second should verdict tion should not be should be able jury prior of innocence gravating ed: tary procedure not to ry’s By Here, pels I stand.” almost direct; relinquish might “I feel that taking “I ^[*****] the same testify. that I find that compels circumstances. Such informa- practical put was to force the Immediately prior guilt. have asked otherwise stand, Fifth token, apprise particular resolution in this asking questions the defendant effect effect his counsel Amendment available case, this statute almost com- government appellant to Cur- on the Circuit plead- right issue uni- ag- on for a went Price, supra federal finding particular procedure. did not ily without flexibly, of former In United States ity. tering trol.)” further obtained exclusively mandatory legislative Supreme (Our cases. expressed a their Wigmore, waiting handle case. Courts 258 F.2d at and noted: guilt convictions It is to be procedure, which Judge Hastie, Court introduce within interference the verdict This on the evidence are too ex op. California strong preference legislative rel. sit. purpose their own regretted that until prone to wait Pennsylvania supra Thompson v. concurring, before procedure ought to form after Is author- method rule at 661. Third read- con- al- duty magnifies jury having greatly about to decide procedure “A which capital punishment, inviting I am—I im- risk, practically feel capital evidence, this case that a counsel in proper in a use defense put funda- issue of a serious raises case forced defendant what like. stand. I must show he is Id. at fairness.” mental person is. I kind must reveal the rel. ex Scoleri In United States beyond question of “This Circuit, sit- Banmiller, supra, the Third guilt. goes question of. This trial, ting banc, held a en pow- sentence, and since have the courts, funda- Pennsylvania “so state death, I do it.” er to sentence must unjust” de- mentally to a to amount (Emphasis added.)2 process. due nial of analogous situation, In an Su Commentary Penal the Model preme disapproved pro Court has (Tentative Draft 201.6 at 74-75 Code § “may cedure which induce a defendant 1959) concludes: No. jury, silent,” to remain and thus force upon insist is no reason to “There guilt pass “that is to or innocence as a' a choice between method voluntariness,” on “less well as to decide of the trial threatens the fairness all of Jack than the relevant evidence.” guilt de- or innocence one which supra Denno, son v. 378 U.S. at rationality de- of the from the tracts n. at 1787. The ob- of the sentence. termination Wigmore, discussing a now amend- Royal solution, proposed vious Pennsylvania unitary statute,3 ed trial Capital Punishment, Commission argued: abiding proceeding, bifurcate strictly by only way injustice until of evidence “The the rules to avoid conviction, but is a such cases is to and unless there reserve the evidence penalty. seeking trial, 2. death was not At testified that Wilcoxson imposed actively then, participated could liad him in a Even penalty. cold-blooded murder course robbery Lafayette National requires two-stage Pennsylvania government’s now Bank. It 3. was not until summation, UtL after had taken the Penn.Ann.Stat. stand, prosecutor announced that guilt open- once has been determined

ing the record to the further informa-

tion that is relevant to sentence.” arguments for the compelling

seem to me to be so and the authority supporting procedure so

weighty respectfully I that must dissent.

UNITED STATES of America ex rel. MITCHELL, Edward Relator- Appellee, FOLLETTE, Warden,

Hon. Harold Green Prison, Stormville, York, Haven New Respondent-Appellant.

No. Docket 29841. Appeals

United States Court of

Second Circuit.

Argued Nov. 1965.

Decided Feb.

Case Details

Case Name: United States v. Peter Columbus Curry, Jr.

Court Name: Court of Appeals for the Second Circuit

Date Published: Apr 11, 1966

Citation: 358 F.2d 904

Docket Number: 29000_1

Court Abbreviation: 2d Cir.