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UNITED STATES v. JOHNSON

March 11, 1975

UNITED STATES OF AMERICA
v.
WILLIAM JOHNSON, Defendant



The opinion of the court was delivered by: NEAHER

MEMORANDUM OF DECISION

 NEAHER, District Judge.

 The defendant, William Johnson, having waived trial by jury, was tried by the court on an indictment charging him alone with bank robbery in two counts. 18 U.S.C. §§ 2113(a) and (d) and § 2. *fn1" It was stipulated as fact at the outset, in lieu of witnesses to be called by the government, that on February 29, 1972, the Kings Lafayette Bank, 650 Fulton Street, Brooklyn, New York, was robbed of approximately $89,000 by five armed males, the bank's deposits being then insured by the Federal Deposit Insurance Corporation. It was also stipulated that there were no eyewitness identifications of the defendant as one of the bank robbers. The crucial question to be determined at trial was whether defendant had confessed his participation in the robbery beyond a reasonable doubt by voluntary statements made to the officers who had arrested him.

 The government's evidence, aside from the stipulation of facts, consisted solely of the testimony of the arresting officers and certain documents and photographs bearing defendant's signature and other writing by him. *fn2" In summary, that evidence, if fully credited, established the following facts:

 On April 24, 1972, prior to 2:00 p.m., F.B.I. Special Agent Joseph Koletar, accompanied by New York City Detectives Richard Hodgson and Robert Killie, went to defendant's apartment at 898 Saratoga Avenue in Brooklyn to place him under arrest. In response to their knock, defendant opened the door and, after the officers identified themselves, indicated he was expecting them. After being informed of his rights, defendant accompanied the officers to the 76th police precinct. There he was again advised of his rights and stated his willingness to talk to Agent Koletar about the Kings Lafayette Bank robbery, although declining to sign the waiver of rights included in a standard F.B.I. "Interrogation: Advice of Rights" form presented to him. Then for one and a half to two hours he gave a detailed narration of the bank robbery.

 With defendant's agreement, his verbal statement was reduced to written form by Agent Koletar and signed by defendant, at which time he also agreed to sign the "Interrogation: Advice of Rights" form and did so. In that statement dated "4/24/72," time "4:40 P.M.," Government's Exh. 3, the defendant admitted:

 
"I helped rob the Kings Lafayette Bank, 650 Fulton Street, Brooklyn, New York on February 29, 1972. My job in the robbery was to stand guard over bank employees at the front of the bank. During the robbery I held my hand in my pocket as if I had a gun. A money shipment in a canvas bag was taken from the bank.
 
"Later the same day, I received about $12,000.00 in United States currency for my part in the robbery, this money having come from the bank."

 Although the entire statement was in Agent Koletar's handwriting, it concluded with a statement and signature admittedly in defendant's handwriting, which read:

 
"I have read this statement, consisting of this and one other page, which I have initialed, and it is true and correct."

 The four succeeding pages of Government's Exh. 3, also in Koletar's handwriting, recite the details of the planning and execution of the bank robbery, the names of the other participants, their activities in the bank, and the manner of the getaway and distribution of the loot. Identified by defendant as other participants in the robbery were Mervin Cecil Barry, Edward Davis, Jeffrey Patrick Bonner, Randy Russell and Earl Rozier, who remained outside as lookout with the then unidentified driver of the getaway car. *fn3" This portion of the statement was also concluded by a sentence in defendant's clearly written handwriting, acknowledging that it was "true and correct," followed by his signature.

 During the interview at about 3:00 p.m., defendant was permitted to and did make a telephone call. Throughout the interview defendant was cooperative, was able to read and write, spoke without slurred speech and exhibited no needle marks or other evidence of recent drug intake. At no time was he threatened or coerced. At the conclusion of the interview about 6:00 p.m., he was taken by the arresting officers to F.B.I. headquarters in Manhattan where he went through the usual processing, after which he was lodged at the Federal Detention Center.

 On the next morning, April 25, 1972, defendant was arraigned before a United States Magistrate who assigned Joel Winograd, Esq., to represent him. In defendant's presence, Agent Koletar at that time informed Winograd of the defendant's cooperation of the day before and obtained Winograd's consent to the officers' seeing defendant "in the future" for the purpose of showing him photographs to further identify members of the bank robbery group.

 On May 1, 1972, pursuant to the foregoing arrangement, Agent Koletar and Detective Hodgson met with defendant in the detention room in this courthouse. On that occasion, in the absence of his counsel, defendant signed an "Interrogation: Advice of Rights" form including a waiver of rights. Government's Exh. 4. He was shown a group of six photographs from which he selected one, placing his signature and the date "1 May 1972" on the back. Government's Exh. 5. Defendant did not know the man's name but identified him as being present in the Davis apartment when the bank loot was split up. After being informed that the man was Virgil Lee Woods, defendant signed a statement ...


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