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November 12, 1971

Glenn W. HALL, Defendant

The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

Petitioner, Glenn W. Hall, was convicted for armed robbery of a bank following a trial by jury from May 7, 1969 to May 12, 1969, at Auburn, in the District Court for the Northern District of New York. He was sentenced on May 27, 1969 to a term of ten years; his conviction was affirmed on appeal, and certiorari was denied. United States v. Hall, 421 F.2d 540 (2d Cir. 1969), cert. denied, 397 U.S. 990, 90 S. Ct. 1123, 25 L. Ed. 2d 398 (1970). He now moves for a hearing and vacation of his conviction and sentence on the ground that his constitutional rights under the Fourteenth Amendment were violated. *fn1"

As in most bank robbery cases, there was virtually no dispute upon the trial that a masked man, armed with a rifle, forced a teller to open a vault and robbed the Cicero branch of The Merchants National Bank & Trust Co. of Syracuse of $37,872.44, none of which was ever recovered. The only genuine issue on the trial was whether petitioner was the robber. The Court of Appeals, noting that the case against petitioner was strong, affirmed his conviction.

 Petitioner brings his present motion under 28 U.S.C. ┬ž 2255, claiming that agents of the government, who testified at his trial, "withheld information directly bearing on whether or not * * * [petitioner] should have been advised of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694" (1966).

 We granted an evidentiary hearing because material issues of fact were raised in the supporting and answering affidavits which could not be resolved by resort to the pleadings and files and records of the case. Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963); Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963); United States v. Malcolm, 432 F.2d 809, 812 (2d Cir. 1970). Those issues bear on our ruling during trial, affirmed by the Court of Appeals, that petitioner was not in custody when he made a false exculpatory statement to F.B.I. agents.

 The Miranda question now raised cannot be answered without regard to the circumstances under which it arose.

 The government sought to introduce testimony upon the trial concerning a false exculpatory statement made by petitioner to agents of the F.B.I. during their initial interrogation of him at his apartment in North Tonawanda, N.Y., on December 12, 1968. The agents did not give petitioner the Miranda warnings until seventeen minutes after the interrogation had begun. During that period, petitioner made a statement, later proved false, that his car was in front of his apartment house on the morning of the robbery.

 Petitioner, relying on Miranda, objected to admission of the false exculpatory statement, whereupon we held a full and fair evidentiary hearing during the trial to determine whether petitioner had been denied due process in accordance with the teachings of Miranda. Finding that he was not in custody when he made the false exculpatory statement during the initial seventeen minutes of interrogation, we held that his Miranda rights had not been violated and admitted the statement in evidence.

 The central question raised by petitioner on direct appeal was whether the agents had violated his rights in failing to give him Miranda warnings during the initial interrogation. Addressing itself solely to the issue of whether petitioner had been denied due process according to the Miranda teachings, the Court affirmed petitioner's conviction and, speaking through now Chief Judge Friendly, expressly upheld our ruling, saying that:

"[We] agree with the district judge that the initial interrogation was not during a period when Hall was in custody or his liberty was significantly restrained * * *." 421 F.2d at 546.

 Elaborating, the Court of Appeals observed:

"[In] the absence of actual arrest something must be said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so. This is not to say that the amount of information possessed by the police, and the consequent acuity of their 'focus,' is irrelevant. The more cause for believing the suspect committed the crime, the greater the tendency to bear down in interrogation and to create the kind of atmosphere of significant restraint that triggers Miranda, and vice versa. But this is simply one circumstance, to be weighed with all the others." 421 F.2d at 545.

 Balancing the factors, the court found that the physical circumstances *fn2" of the initial interrogation were outweighed by the fact "that the only piece of information the agents then had was the presence of Hall's car near the scene and at the time of the robbery" and therefore held that the defendant was not in custody during the initial seventeen minutes.

 Petitioner now claims that the agents possessed much more information about him during the period of the initial interrogation than they revealed in their testimony on the evidentiary hearing held during trial. Petitioner claims that the F.B.I. had conducted an investigation of him before they talked to him and had discovered other potentially incriminating facts. He also claims that the F.B.I. prevented his girl friend from entering his apartment during the interrogation. He maintains that if these facts had been disclosed upon the hearing, neither this court nor the Court of Appeals could have found that he was not in custody when the ...

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