Lumbard, Chief Judge, and Moore and Hays, Circuit Judges. Hays, Circuit Judge (dissenting).
Peter Columbus Curry's appeal from his conviction by a jury in the Eastern District of New York for bank robbery, in the course of which one of his fellow-robbers shot and killed a bank guard, and from his sentence to life imprisonment, raises four questions: (1) Whether it was error to allow the government to use, for the purpose of impeaching contrary testimony given by Curry in his own defense, Curry's statements made to FBI agents prior to his arraignment, which statements had been suppressed from use by the government as direct evidence; (2) Whether or not 18 U.S.C. § 2113(e), which leaves to the jury whether a defendant found guilty of felony-murder should suffer the death penalty, as applied in the instant case is repugnant to the Fifth Amendment; (3) Whether the method of selecting the jury panel was in violation of Curry's rights because it systematically excluded Negroes from the panel; and (4) Whether the district court erred in denying, after a hearing, a motion for a new trial in which defendant alleged that one government witness had recanted and that the testimony of another government witness could be materially impeached. We find all these allegations of error to be without substance and affirm the conviction.
Curry was first tried before Judge Matthew T. Abruzzo and a jury, but the Judge's illness caused a mistrial during the government's case. A second trial, conducted from November 4 to December 22, 1963, before Judge John F. Dooling, Jr., resulted in the judgment of conviction for violation of 18 U.S.C. §§ 2, 371, 2113(a), (d) and (e) from which Curry appeals.
The government's proof amply supports the jury's verdict that Curry was guilty of participating in the robbery of $32,763.43 in cash from the Lafayette National Bank in Brooklyn on the morning of December 15, 1961, together with Albert Frederick Nussbaum and Bobby Randell Wilcoxson, who shot and killed a bank guard.
Curry, Nussbaum and Wilcoxson had met several years prior to 1961 while serving sentences at the Federal Reformatory in Chillicothe, Ohio. When Curry was released from a Georgia prison in October 1961, he visited Nussbaum in Buffalo, using money Nussbaum had sent him. He later came to Brooklyn, where Nussbaum continued to send him money. Wilcoxson joined Curry in New York and the two drove around Long Island searching for a likely bank to rob. Nussbaum came to New York and, commencing November 24, 1961, all three talked about robbing a bank. They finally fixed upon the Lafayette Bank at Utica Avenue and Kings Highway, Brooklyn. The trio made observations regarding the layout of the bank, the movement of its employees, and the delivery of money to it, and they planned their disguises and a getaway route. They also stole an Oldsmobile for a getaway car.
Nussbaum and Wilcoxson picked up Curry near his home at 7:00 A.M. on December 15, and Nussbaum attached a black crepe hair moustache to Curry's upper lip. Curry and Wilcoxson went to the bank in the Oldsmobile; Curry put on a red corduroy cap and took two revolvers from the supply of weapons Nussbaum had provided. Nussbaum parked across the street from the bank in his Ford station wagon, which was equipped with a walkie-talkie transmitter and receiver. Wilcoxson, wearing a raincoat and dark glasses, entered one bank entrance and killed the bank's armed guard with four shots from a Thompson.45 calibre submachine gun. Curry came in from another entrance, cowed the tellers with two loaded revolvers and scooped up cash in two of the tellers' booths. Despite a gun battle with a uniformed policeman, Wilcoxson and Curry escaped out the Utica Avenue exit to the Oldsmobile and sped away. By means of the walkie-talkie Nussbaum picked them up when they abandoned the Oldsmobile. Nussbaum and Wilcoxson went back to Buffalo and Curry returned to his Brooklyn home. Later Curry received part of his one-third share of the $32,000 loot.
Nussbaum and Wilcoxson, both white, pleaded guilty and testified in detail to the part played by Curry, a Negro, in the planning and execution of the robbery. Several other witnesses identified Curry as the Negro with the two revolvers. In addition, Valerie Brunner, who had been Curry's fiancee at the time, testified that Curry admitted that he helped rob the bank and gave other testimony corroborating Curry's contacts with Wilcoxson shortly before the robbery.
When Curry testified, he admitted his relationship with Wilcoxson and Nussbaum and his participation in the planning of the robbery and in an abortive attempt to rob the same bank on December 8. He even admitted meeting Wilcoxson and Nussbaum on the morning of December 15, but he said that a Negro named "Streets" was with them and that he, Curry, left them at 7:30 A.M. and did not go to the bank. Curry also named three others, Robert Martin, Deroy Pettit and Fred Cunningham, who he said took part in the planning of the robbery.
I. Curry's Statements to the FBI.
Arrest warrants for Curry, Wilcoxson and Nussbaum were secured from United States Commissioner Shiffman between 6:00 and 7:00 P.M. on February 12, 1962. Agents Long and Putz of the FBI, accompanied by New York City Detective Lesson, arrested Curry at the home of his mother and stepfather in Brooklyn when he arrived there from Washington, D.C., at 4:50 A.M. on February 13, 1962. Curry was warned that he need make no statement, that what he said could be used, and of his right to consult a lawyer. Agent Foley joined them minutes later. It took a few minutes to get to the agents' car, and thirty-five minutes to drive to FBI Headquarters. The interviewing room contained two desks, four or five chairs, one filing cabinet, and one window facing east opposite the door. The room was occupied by Curry, Agents Foley, Putz and Keefe, and Detective Lesson.*fn1 Curry was immediately "strip-searched"; he disrobed completely and all his belongings were given a thorough examination. He then dressed. After the search and before Curry made any statement, Agents Foley and Putz again advised him that he need make no statement, that anything he said could be used in a court against him, and that he could have legal counsel. Curry replied that he wanted to call a lawyer and that he had a lawyer. Foley offered him the use of a telephone on the desk, and Curry then replied, "I don't have an attorney."
The first forty-five minutes of the interview centered around Curry's background: his parents, family, schooling, and personal history. Agent Foley was the only one to question. At 6:32 A.M. Curry was served coffee.
The interview then turned to the bank robbery itself. Foley explained why they thought that Curry had been involved and asked if Curry had anything to reply. Curry denied taking part in the robbery. The agents brought the names of Wilcoxson and Nussbaum into the questioning, explaining that the FBI knew that Curry had met them in prison and that Wilcoxson had called Curry's house from the New York Statler Hotel. Curry still denied taking part in the robbery and denied that he knew Wilcoxson and Nussbaum. Apparently most of the questions during this period were asked by Agents Foley and Putz. During this time Curry was told something along the lines of "Be truthful and you will be better off," but there was no elaboration as to how he would be "better off." At 8:16 A.M. Curry was again given coffee; he declined the offer of a roll.
The questioning then turned to locating Wilcoxson and Nussbaum. They were still at large at the time, had committed other robberies prior to the Lafayette Bank robbery, and in fact later committed at least three bank robberies in Philadelphia and in suburbs of Pittsburgh in 1962. Curry was shown pictures of himself, Nussbaum and Wilcoxson which the New York Daily News had published the prior night because of the issuance of the arrest warrants. Curry then admitted that he knew them, but he continued to deny having taken part in the robbery. Agent Foley, in questioning Curry, outlined the general scheme of the robbery during this period, but, according to his testimony, did not go into explicit detail.
At 9:47 A.M., Curry was taken to the bathroom by Agents Keefe and Putz and was then photographed. Curry claims that four agents took him into the bathroom and, because they appeared set to beat him, he told them that he would confess. Both Keefe and Putz testified that no such threats were made and that Putz, in the men's room, merely pointed out some of the inconsistencies in Curry's statements. At about this time, the agents became convinced that Curry was ready to disclose what he knew about the robbery.
At 9:56 A.M. Curry and the two agents returned to the interview room and the questioning continued. At 10:00 Curry stated, "Yes, I was in on it," and proceeded to admit his part in the robbery. Agent Foley took the information down in narrative form; after he finished his story, Curry read the statement for about ten minutes. He then signed it at 11:18 A.M. after writing at the end a sentence dictated by Foley that the statement was true and correct.
Meanwhile, Commissioner Shiffman had been advised of Curry's arrest and had told the agents he would be ready for arraignment about 1:00 P.M. Curry was now driven to the office of the United States Attorney in Brooklyn, arriving about noon. He talked at length with his mother in the office of an Assistant United States Attorney until his arraignment just before 1:00 P.M.
Upon arraignment, Curry was again warned that he was entitled to remain silent and to have legal counsel. The Commissioner informed him that, "We will get the Legal Aid Society to defend you if you have no money to provide yourself with counsel." Curry replied, "I want to furnish my own attorney."
On the following day, Curry was interviewed at the Federal House of Detention at West Street, Manhattan, by FBI agents. He gave an oral statement filling in some of the details of the crime. Other interviews were held on February 15, 16, 21, March 6 and 7. Written statements were signed by Curry on February 13 (the original statement), 15, 16 and 21. Curry was under no obligation to see any visitors at West Street and his permission was necessary for the agents' visit. At all interviews he was warned of his rights to counsel and to remain silent.
During this period, Curry consented to repeated adjournments of a preliminary hearing before the United States Commissioner. The February 13 hearing was adjourned one week to afford Curry time to secure counsel. Curry appeared unrepresented a second time and the matter was put over to March 7. Curry again appeared without counsel, and the hearing was put over until March 21, when he appeared with counsel and waived a hearing. At each of these appearances the Commissioner made repeated offers of Legal Aid counsel, but these were refused by Curry because he wished to secure an attorney through his own means.
A motion to suppress Curry's statements to the FBI was first passed upon by Judge Abruzzo, who denied the motion. Judge Abruzzo rejected Curry's allegations that the agents had threatened to have Curry's son and his mother's six foster children taken away and held that the statements were not coerced in any way. He also noted that Curry "is one of the smartest witnesses I have ever seen on the stand in my experience." Signed confessions dated February 13 and 15 and a report of an oral confession made February 14 were received into evidence at the first trial.
The motion to suppress was renewed at the second trial and additional proof was taken before Judge Dooling. Judge Dooling found that "Physical force or specific promises are not found to have overcome defendant's [sic] Curry's will." He also found that while "a primary objective of the interrogation was to obtain from Curry admission of his guilty involvement and a confession if possible," "a substantial part of the time was spent on getting biographical data on Curry himself and in getting data on Wilcoxson and Nussbaum." However, differing with Judge Abruzzo, he held that suppression was required for two reasons: because Curry had been interrogated without the advice of counsel, and because the initial statement had been elicited during a period of unnecessary delay prior to a preliminary hearing in violation of Rule 5(a) of the Federal Rules of Criminal Procedure. United States v. Curry, D.C., 227 F. Supp. 773 (1963). At the same time, Judge Dooling advised the parties that the government could make use of parts of the statements collateral to the issue of guilt if Curry took the stand and if his testimony was at variance with such statements, citing Walder v. United States, 347 U.S. 623, 74 S. Ct. 354, 98 L.Ed 503 (1954). On two collateral matters the government was permitted to use Curry's suppressed statements to impeach his testimony. Curry was asked why in his statements to the FBI agents he did not mention the part played by Streets, Cunningham and Pettit and why he said that he had met Martin only once, in October 1961. Curry replied that he had not wished to incriminate persons whom the FBI did not know were implicated. He was also asked whether he told the agents that he had worn a false moustache on December 8, the day of the abortive first attempt to rob the Lafayette Bank (Curry had testified on direct examination that he did not wear such a moustache on December 8).*fn2 He replied that he had not, although he was not certain. Agent Putz was recalled to the stand after Curry's testimony and testified that Curry had told the agents that he had worn a false black moustache affixed by Nussbaum just prior to the December 8 attempt. Putz also testified that the agents had questioned Curry about Cunningham and Pettit because they were known associates of Nussbaum and Wilcoxson and that Curry had said he had not seen Pettit or Cunningham since meeting them in Chillicothe. According to Putz, Curry also told the agents that he knew Martin only as a friend of Nussbaum.
We hold that it was proper for the district court to permit this use of Curry's statements for two reasons. First, although the government cannot use the fruits of illegal action to establish the elements of the crime with which the defendant is charged, if the defendant offers testimony contrary to the facts disclosed by evidence which has been suppressed, the government may in the interest of truth use this illegally obtained evidence to establish facts collateral to the ultimate issue of guilt. Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954).
In Walder the petitioner took the stand during his trial for illicit transactions in narcotics and testified that he had never possessed narcotics illegally. The government then introduced testimony that, nearly two years previously, the police had seized narcotics from the petitioner, which evidence had been suppressed at a prior trial because it was obtained during an unconstitutional search of petitioner's home. The Supreme Court held that such a limited use of the fruits of an unconstitutional search and seizure was permissible: while a defendant must be free to take the stand and to deny the elements of the crime with which he is charged without fear that his testimony will permit the prosecution to introduce evidence illegally obtained from him and thus unavailable in the government's case-in-chief, said the Court, citing Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145 (1925), there is no justification for letting a defendant affirmatively resort to perjured testimony as to collateral matters in reliance upon the government's inability to challenge his credibility.
The Walder doctrine governs here and permits the government's use of Curry's statement on his cross-examination. Although the government was precluded by the ruling of the district court from using in its direct case Curry's admissions that he participated in the robbery, when Curry attempted to construct an alibi inconsistent with his original statements to the FBI, the government could point out inconsistencies as to collateral items such as whether additional parties were implicated and whether Curry had worn a moustache on a prior occasion.*fn3 Thus the government may not make any use of evidence which has been suppressed in order to make out a case which is strong enough to have the jury pass upon guilt or innocence. And, likewise, the defendant's denial of the elements of the crime may not be disputed by evidence which is the fruit of illegal action. See Agnello v. United States, supra. But once the government has presented a prima facie case without using such evidence, it may use the suppressed evidence to challenge the truth and reliability of the defendant's assertions as to collateral matters.
The Walder case involved the admissibility of tangible evidence obtained through an unconstitutional search and seizure. However, the Walder doctrine has been applied to permit the limited admission into evidence of prior inconsistent statements, made by a defendant during a period of unnecessary detention which violated Rule 5(a) of the Federal Rules of Criminal Procedure, and excluded from use in the prosecution's case-in-chief by the McNabb-Mallory doctrine. Tate v. United States, 109 U.S.App.D.C. 13, 283 F.2d 377 (D.C.Cir. 1960). See also Lockley v. United States, 106 U.S.App.D.C. 163, 270 F.2d 915, 918 (1959) (dissenting opinion). Curry argues first that the Walder doctrine is inapplicable whenever the Constitution directly requires the exclusion of evidence, second that Walder was therefore implicitly overruled by Mapp v. State of Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), because Mapp made the exclusionary rule at issue in Walder a part of the Fourth Amendment's guarantee, and finally that Tate is inapplicable because it dealt with an evidentiary rule whereas Curry's statements were excluded because they were obtained in violation of his Sixth Amendment right to counsel.
We do not agree that the Walder doctrine was in any way weakened by Mapp v. State of Ohio. The rule excluding unconstitutionally seized evidence in a federal prosecution had, according to the author of Mapp itself, 367 U.S. at 646-649, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 always been a part of the Fourth Amendment's guarantee. Although this assertion has been disputed,*fn4 and although Mapp was the first case to hold that the exclusionary rule is a Due Process requirement of the Fourteenth Amendment, we do not think that this extension of the exclusionary rule requires per se an alteration of principles previously applied to federal prosecutions.
Neither Walder nor any of the cases directly interpreting it indicates that the principle of limited admissibility for collateral impeachment purposes is inapplicable when evidence is excluded because unconstitutionally obtained. An exclusionary rule, whether based on constitutional principles or not, is meant primarily to protect those accused of crime from unfair or unconstitutional police procedures by removing the strongest police incentive to use such procedures. Such a rule often results in excluding highly reliable evidence in order to ensure that those who enforce the law will not profit from violating the law. But it does not follow that, if such evidence is excluded for one purpose, it must be excluded for all purposes. It is enough to deter illegal police activity if the government is prohibited from using evidence obtained by such activity to prove its direct case. In view of this adequate penalty, to deny to the government the use of Curry's statement to impeach his contrary testimony at trial would be an unnecessary impediment to the search for truth.
We think that the Supreme Court's decision in Walder is in no way modified by the subsequent decision in Mapp. In addition, we find the justification for letting a defendant testify without cross-examination as to collateral matters which can be reliably impeached no greater where the suppressed evidence is an admission made in the absence of counsel guaranteed by the Sixth Amendment. It is true that, if a prior admission were found to be unconstitutionally coerced, the substantial possibility that the admission is no more reliable than the contrary testimony of the accused at trial should lead a court to proceed with caution in permitting its use for impeachment purposes. See People v. Underwood, 61 A.C. 94, 61 Cal. 2d 113, 37 Cal.Rptr. 313, 389 P.2d 937 (Sup.Ct.1964). But where, as here, there is no good reason to believe that a prior inconsistent statement was not accurate and voluntary, we find the Walder principle controlling.
Finally, we find the Walder principle applicable even though the jury was not instructed, as was the Walder jury, that the rebuttal evidence must be used for impeachment purposes only. While it would have been preferable to have had such limiting instructions, none were requested by Curry. "The better opinion is that the opponent of the evidence must ask for that instruction ; otherwise, he may be supposed to have waived it as necessary for his protection." 1 Wigmore, Evidence § 13, at p. 301 (3d ed. 1940) (emphasis in original). The defense may not remain silent in hopes that the district court will fall into reversible error where ...