Appeal, urging evidentiary error, from judgments of conviction for bank theft, 18 U.S.C. §§ 2, 2113(b), after jury trial before United States District Court for the District of Vermont, Albert W. Coffrin, J.
Lumbard, Moore and Feinberg, Circuit Judges.
Anthony Thomas Campanile and William Monks appeal from judgments of conviction entered after a nine-day jury trial in the United States District Court for the District of Vermont, Albert W. Coffrin, J. Each was found guilty on two counts of violating 18 U.S.C. §§ 2, 2113(b), theft from a federally insured bank, and sentenced to eight years in prison. We affirm the judgments of conviction.
The case was unusual because there were no eyewitnesses to the bank thefts, which were done at night, but there was little question about the presence of appellants, strangers to northern Vermont, in the area at the crucial times. From the evidence before the jury -- some of which appellants argue was improperly admitted -- the jury could reasonably have found the following: In May 1973, pursuant to a plan to rob banks, Campanile and Monks stole a van in New Jersey, switched license plates with another vehicle, and drove to Vermont the next day. Having trouble with the shift linkage on the van, they were forced to seek assistance from residents of Enosburg Falls, Vt. After tinkering with it for a while, they gave up, went to the American Legion Hall for a few beers, and stayed until closing time. Later that evening they returned to the Hall, pried open a door, and took approximately $300 (including $75 in singles) and several cartons of cigarettes. Blue paint was found in the pry marks on the door, and a coin box that had not been used for years was forced open by the robbers.
That same night appellants broke into the Howard Bank of Enosburg Falls. They again gained entry by forcing open a door. Blue paint was found in the pry marks, and once more the evidence indicated that strangers to the area committed the break-in -- several outer doors were broken into before the door leading to the bank was located. This time, approximately $900 in coins was taken from locked tellers' vaults. Campanile and Monks then drove to Milton, Vt., where they opened a window in the Franklin Bank and stole approximately $1,300 in coins from tellers' vaults. A resident of the town spotted lights in a lot near the bank at about 4:00 A.M. that morning. A half hour later, two policemen noticed Campanile in the stolen van as it drove slowly south through Essex Junction, Vt., away from Milton and the Franklin Bank.
At 9:30 A.M. that morning, Campanile and Monks drove into a gas station in St. Johnsbury, Vt., with the still malfunctioning van. They asked that it be repaired and left a deposit of $20 in singles. They also arranged with two local teenagers for a lift back to New Jersey. The two young men were paid $100 for the trip; $40 was in single bills. Appellants insisted on loading the hired automobile themselves; although the car had heavy duty shock absorbers, it rode significantly lower after appellants loaded it. During the trip, Campanile and Monks used the names Joe and Bob. Campanile was dropped off in front of what he said was his brother's house in Paterson, N.J., where he and Monks' insisted upon unloading the car themselves. Monks was then driven to a nearby location.*fn1
Both defendants raise a variety of points. We will treat Campanile's first. He was arrested on August 17, 1973, by the New York City police on state charges. Approximately 20 hours later, he was transferred to federal custody for questioning on a charge of interstate transportation of a stolen motor vehicle. Shortly thereafter, he stated that he had stolen the van and gone to Vermont to "line up robberies." He admitted taking a Luger handgun with him. On appeal, Campanile argues that these statements should not have been admitted into evidence under 18 U.S.C. § 3501. In particular, he states that his "confession" was automatically involuntary under section 3501(c) because the combined federal-state detention prior to his appearance before a federal magistrate exceeded six hours, plus a reasonable allowance for transportation time, and his confession was made more than six hours after his arrest. Appellant apparently did not make this specific argument below, and we might well refuse to deal with it on that ground alone. However, since the issue of voluntariness was the subject of a suppression hearing, we will consider this specific, as well as the more general, claim.
While we question whether it is proper to add the time spent in state custody to the federal period in this case, see United States v. Johnson, 467 F.2d 630, 637 (2d Cir. 1972), cert. denied sub nom., 410 U.S. 932, 93 S. Ct. 1382, 35 L. Ed. 2d 595, and cert. denied, 413 U.S. 920, 93 S. Ct. 3069, 37 L. Ed. 2d 1042 (1973); but see United States v. Halbert, 436 F.2d 1226, 1232 (9th Cir. 1970); cf. United States v. Chadwick, 415 F.2d 167, 171 (10th Cir. 1969), we need not resolve the issue here. Violation of the six-hour rule does not automatically make a confession involuntary; rather, it is only one of the many factors to be considered in making that determination. United States v. Johnson, supra. The FBI agent who interrogated Campanile stated that prior to federal questioning the defendant was fully apprised of his rights and waived them. While Campanile testified at the voluntariness hearing that at the time of questioning he was going through narcotic withdrawal, the agent testified that he noticed no signs of distress and that, on the contrary, Campanile seemed "very jovial." In light of this evidence, we are not persuaded that Judge Coffrin's finding of voluntariness was clearly erroneous; in fact, we believe it was correct. See United States v. Stone, 472 F.2d 909, 913 (5th Cir. 1973).
Campanile also argues that evidence seized pursuant to a warrant from his brother Michael's apartment in Paterson should have been suppressed. After a suppression hearing, at which it was revealed that the apartment was originally leased to defendant (Anthony Campanile) and then subleased by his brother, the court ruled that defendant lacked standing to challenge the search. Not only was the apartment lease still in defendant's name, but also there was evidence that he occasionally stayed at the apartment, still received mail there, and sometimes stored things there with his brother. The standing issue, therefore, is not easily resolved. In addition, defendant was clearly the object of the search and as such may have standing on that ground alone. See United States v. Mapp, 476 F.2d 67, 71 (2d Cir. 1973). Thus, rather than decide the issue of standing, we will treat the merits of the suppression motion itself, cf. United States v. Cangiano, 491 F.2d 906, 912 (2d Cir. 1974), cert. denied, 419 U.S. 904, 95 S. Ct. 188, 42 L. Ed. 2d 149, and cert. denied sub nom., 419 U.S. 933, 95 S. Ct. 204, 42 L. Ed. 2d 162 (1974), and deal with the various arguments Campanile either made in the trial court or to us at oral argument.*fn2
Here there was no question that there was sufficient cause to issue the warrant. The two teenagers who drove appellants to New Jersey led the police back to the apartment less than a week later. At oral argument, Campanile made much of the statement in the warrant that it was for the "only basement" apartment at the Paterson address, although the evidence at trial indicated that there may have been two basement apartments. But the police searched only the apartment lived in by defendant's brother, which was the one described in the affidavit that supported the warrant. We do not think this slight variance is enough to make the warrant void on its face, particularly when the agents clearly knew which apartment they were to search. See Steele v. United States, 267 U.S. 498, 503, 69 L. Ed. 757, 45 S. Ct. 414 (1925); United States v. DePugh, 452 F.2d 915, 920 (10th Cir. 1971), cert. denied, 407 U.S. 920, 92 S. Ct. 2452, 32 L. Ed. 2d 805 (1972). When the agents searched the apartment they found, in addition to items listed in the warrant, cartons of cigarettes bearing Vermont tax stamps and a black case heavy enough to contain rolled coins. When the case was opened, it was found to contain a Luger which was owned, according to Michael Campanile, by his brother Anthony. Since the defendant was known to be a felon, the Luger was clearly contraband. Under the rationale of Coolidge v. New Hampshire, 403 U.S. 443, 465-72, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971), the cigarettes and Luger were subject to seizure both as evidence discovered by chance in the course of a lawful search, and as stolen goods or contraband. See also United States v. Pacelli, 470 F.2d 67, 70-72 (2d Cir. 1972), cert. denied, 410 U.S. 983, 36 L. Ed. 2d 178, 93 S. Ct. 1501 (1973).
Other items, such as coin wrappers and cleaning equipment that was in the van when stolen, were also discovered during the search but not in the Campanile apartment. Rather, they were found in the trash cans and common areas of the apartment building. Since the superintendent of the building had ...