Appeal from judgment of conviction entered in the United States District Court for the Western District of New York, Curtin, J., following a nonjury trial convicting Oliver of 18 U.S.C. § 2113, alleging inter alia a violation of the Prompt Disposition Plan. Affirmed.
Lumbard, Moore, and Feinberg, Circuit Judges. Lumbard, Feinberg, Circuit Judges, concurring.
This is an appeal from a conviction for three counts of bank robbery arising from an armed robbery of a branch of the Manufacturers and Traders Trust Company in Buffalo, New York, on July 12, 1972. Kenneth Oliver was tried by the District Court for the Western District of New York on September 10 and 11, 1974, having waived his right to a jury trial. The evidence presented included stipulations and exhibits.
Appellant argues (1) that the United States Attorney failed to comply with the Plan for Achieving Prompt Disposition of Criminal Cases of the Western District of New York*fn1 and thus denied Oliver his right to a speedy trial; (2) that the lower court erred in not suppressing certain evidence because the government failed to meet its burden in showing that the warrantless search was consented to; (3) that the evidence failed to support a conviction for aggravated bank robbery, 18 U.S.C. § 2113(d), since there was no proof that the gun used in the robbery was loaded; and (4) that the evidence failed to support a conviction under 18 U.S.C. § 2113(a) where the stipulations failed to indicate that the bank employees "were fearful." We find (1) that the United States Attorney fulfilled his obligations under the Plan for Prompt Disposition of Criminal Cases, (2) that the warrantless search was valid as a consent search because of the consent of Linda Oliver, and (3) that the evidence fully supports the conviction. Therefore we affirm.
On July 12, 1972, a black man in a Camaro automobile followed an employee of the Manufacturers and Traders Trust Company into the parking lot adjoining the Buffalo branch of the bank. The man questioned the woman at gunpoint about security at the bank and then with the gun still pointed at her followed her into the bank. Once inside the bank he told the manager and tellers to open several drawers and place the money from the drawers into his black attache case. The robber knew the names of various bank employees and stated that he also knew the location of their residences. Bank employees described the robber as a black male, mid 30's, 5 feet 10 inches to 6 feet, 235-240 lbs., wearing a fake plastic beard. The employee who had initial contact with the robber indicated that the automobile he was driving was a Camaro, beige or tan in color with a black top. When news of the robbery was broadcast, two citizens called to say that they had seen a man in a Camaro fitting the radio description and had taken down his Michigan license plate number because the man was behaving suspiciously. One of these persons observed the man in the Camaro near the home of the bank manager. The other citizen noticed the man in the parking lot of the bank in the early morning a few days prior to the robbery.
The FBI in Buffalo relayed the information about the license plate and robbery to the FBI in Detroit. A state motor vehicle department check revealed that the car was registered to a Linda Oliver whose residence was in Detroit. On July 12, 1972, an FBI agent went to the Oliver residence but did not see the automobile. He returned to the Oliver residence on the morning of July 13, 1972, with several other agents. Linda Oliver answered the door and, in response to the agents' questions, she indicated that her license plates had not been stolen and were on her automobile in her garage and that she was married but that her husband was not at home. The agents accompanied her to her garage and saw a silvergray Camaro with a black vinyl top bearing the license plate number which had been relayed to them. The agents asked her consent to a search of the automobile and house and, when she indicated that she would agree and had nothing to hide, two of the agents drew up a written consent form which was signed by Linda Oliver and witnessed by two of the agents. A search of the car yielded $1,055 in cash and money wrappers bearing the legend "Manufacturers and Traders Trust Company, Buffalo, New York." The agents returned to the house and again asked Linda Oliver if her husband was at home. She responded affirmatively, and the sequence progressed through arrest, questioning and admissions and search of the house yielding further evidence including more cash, a Buffalo street map with names of the bank employees written on it, a fake plastic beard, and an automatic.45 caliber gun.
On July 13, 1972, Oliver was taken before a United States Magistrate where bail was set and a removal hearing pursuant to Fed. R. Crim. P. 40(b)(3) was scheduled for July 21, 1972. He was released on bail the following day, July 14, 1972. Negotiations between Oliver's counsel and an Assistant United States Attorney for the Eastern District of Michigan began, the substance being that Oliver might be willing to plead guilty to the charges resulting from the Buffalo bank robbery if it could be brought to the sentencing court's attention that Kenneth Oliver had cooperated with the Drug Abuse Law Enforcement office. To allow this cooperation to occur, the removal hearing was continued several times - to August 2, 1972, to August 29, 1972, to September 29, 1972, and finally to October 30, 1972 - with the consent of Oliver's counsel.
In the interim a bank robbery occurred in Niles, Michigan, on October 12, 1972, and as a result Oliver was arrested by the FBI on October 13, 1972, on federal bank robbery charges in the Western District of Michigan. When the Assistant United States Attorney for the Western District of Michigan learned that state charges of robbery and murder had been brought against Oliver as a result of the Niles robbery during which a state trooper was killed, the parallel federal charges were dropped to allow the state to prosecute the murder charge involving the death of a state trooper. Oliver was then taken into state custody. The Eastern District of Michigan Rule 40 removal hearing for the Buffalo robbery was dismissed on October 20, 1972.
Oliver remained in the custody of the Michigan state authorities from October 13, 1972 through June 25, 1973, the date he was sentenced on the Michigan state charges. On July 12, 1973, a petition and order for a writ of habeas corpus ad prosequendum was filed. Shortly thereafter Oliver was brought to Buffalo. He pleaded not guilty on July 30, 1973, but was without counsel until August 2, 1973, at which time counsel was appointed. Counsel made several pre-trial motions on August 14, 1973, including a motion for dismissal of the indictment for failure to grant defendant a speedy trial. The government answered on August 30, 1973, with an accounting of the time between arrest and defendant's motion. On October 1, 1973, the defense attorney abandoned the speedy trial motion. Docket Cr. 1973-269. Meanwhile, on September 1, 1973, the government notified the Court of its readiness for trial by forwarding the General Case Report (Form 74) to the Court. This report indicated that the government had been ready to try the case since August 10, 1973. Govt. App. p. 74.
Appellant contends based on the above facts that the government failed to comply with the Second Circuit Rules regarding Prompt Disposition of Criminal Cases*fn2 particularly Rule 4 which provides that "(i)n all cases the government must be ready for trial within six months from the date of the arrest . . . ."*fn3 Rule 5 provides for the exclusion of certain periods of time in the calculation of the six month period. The question then before us is how much "time" measured by the rules passed between Oliver's arrest in July, 1972, and the government's "ready for trial" date of September 1, 1973.*fn4
The first period to examine involves the time from the first arrest on the Buffalo charges, July 13, 1972, to the time of the second arrest on the Michigan charges in October. The Magistrate's records indicate that on July 18, 1972, the removal hearing which had been set for July 21, 1972, was continued with the consent of Oliver's counsel. As noted above, continuances or adjournments were agreed on several additional times for the purpose of giving Oliver an opportunity to cooperate with federal drug officials. Prior to the removal hearing as finally scheduled, the October 13, 1972 arrest occurred. We find that the period from July 18, 1972, to October 13, 1972, does not count in the six-month determination because it is to be excluded pursuant to the Rule 5(b) exclusion of "periods of delay resulting from a continuance granted by the District Court at the request of, or with the consent of counsel. . . ." Cf. United States v. Valot, 481 F.2d 22 (2d Cir. 1973).
From October 13, 1972 on, Oliver was in the custody of Michigan State authorities. Rule 5(d) and 5(f) are applicable to the Michigan custody period inasmuch as they cover respectively a period of unavailability when the "location [of the defendant] is known but his presence for trial cannot be obtained by due diligence" and a period of "delay resulting from detention of the defendant in another jurisdiction provided the prosecuting attorney has been diligent and has made reasonable efforts to obtain the presence of the defendant for trial." After the dismissal of the Rule 40 removal hearing on October 20, 1972, in the Eastern District of Michigan, an Assistant United States Attorney for the Western District of Michigan was in contact with an Assistant United States Attorney in Buffalo. Believing that Oliver might still be contemplating a Rule 20 guilty plea to the Buffalo charges the ...