United States v. George Cobbs, and Charles Julius Thomas, 481 F.2d 196, 3rd Cir. (1973)
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Scribd Government DocsUnited States v. George Cobbs, and Charles Julius Thomas, 481 F.2d 196, 3rd Cir. (1973)
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Scribd Government Docs481 F.
2d 196
UNITED STATES of America
v.
George COBBS, Appellant, and Charles Julius Thomas.
No. 72-2023.
United States Court of Appeals,
Third Circuit.
Argued April 2, 1973.
Decided June 28, 1973.
Certiorari Denied Oct. 23, 1973.
See 94 S.Ct. 298.
1
Martin W. Sheerer, McGregor, Dillman, Sheerer & Schuchert, Pittsburgh, Pa.,
for appellant.
Samuel J. Orr, III, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.
Before ROSENN and HUNTER, Circuit Judges, and BECHTLE, District
Judge.
OPINION OF THE COURT
4
BECHTLE, District Judge.
Appellant, George Cobbs, was charged in a two-count indictment with bank
robbery and putting lives in jeopardy by the use of a dangerous weapon, in
violation of 18 U.S.C. Secs. 2113(a) and 2113(d). The indictment was returned
against appellant on March 10, 1972. He was tried and found guilty by a jury
on June 26, 1972. This appeal has followed from that conviction. The facts are
essentially as follows:
On March 6, 1972, two men robbed the Forest Hills office of the Regent
Savings and Loan Association and $1,323 was taken. The victims of the
robbery, Mrs. Trude Smith and Mrs. Margaret Morgan, both employees of the
bank, were the only eyewitnesses. The two employees testified at trial that one
robber entered the bank, conversed with one of them for a short time, then
declared that it was a "stickup." The second robber entered the bank carrying a
handgun, whereafter the robbery was consummated. During the course of the
robbery, the bank's surveillance camera became activated, taking pictures of the
unmasked men. These pictures were admitted into evidence.
7
Appellant Cobbs was arrested at his residence in Braddock, Pennsylvania, on
March 27, 1972, for the above-described robbery.1 The arrest was based on the
positive identification of Cobbs by Mrs. Morgan, an employee of the bank at
the time of the robbery. The identification of Cobbs as a suspect in the robbery
consisted of Mrs. Morgan's selection of appellant's picture from a certain
number of criminal identification photographs shown to her by Special Agent
McCarthy of the Federal Bureau of Investigation (FBI). At the time of his
arrest, Cobbs was informed of his constitutional rights and signed a waiver of
rights form. During the automobile ride from Braddock to the Federal Building
in Pittsburgh and after the waiver form had been signed, implicating statements
were made by the appellant. Agent McCarthy testified that on the way to
Pittsburgh appellant asked how much money had been stolen in the robbery.
After being informed by the Agent as to what was stolen, the appellant
responded, "You mean he got that, too" and later at the FBI office when told
how much was taken the appellant stated, "I only got $150 or $175 out of that."
Further incriminating statements, tantamount to an oral confession, were made
by Cobbs when Agent McCarthy visited him in the Allegheny County Jail on
March 29, 1972, two days after the arrest.
Appellant's initial contention on appeal is that the photographic lineup was not
shown to the Government witness, Mrs. Morgan, until after the indictment had
been returned against him and, as such, so infected her testimony that her
subsequent in-court identification should not be permitted. The exact time of
the photographic lineup is somewhat in dispute. The Government contends that
the photographs were shown to the witness on March 8, 1972, two days after
the robbery and two days before the return of the indictment on March 10,
1972, as testified to by the FBI Agent who showed the photographs to the
witness. Appellant relies on the testimony of Mrs. Morgan to support his
argument that the lineup occurred after the indictment had been returned. Mrs.
Morgan testified that she could not say exactly when she had been shown the
photographs, but it was "about a week after the robbery." Although there is a
conflict in the evidence, the exact time of the lineup is inconsequential. That
the photos were shown after the indictment had been returned does not per se
render the witness' identification testimony inadmissible. United States v.
Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149 (1967); United States ex
rel. Reed v. Anderson, 461 F.2d 739 (3rd Cir. 1972).
10
Unless evidence of identification is of an independent origin, it will not be
received if the circumstances of a pretrial confrontation were so infected by
suggestiveness as to give rise to an irreparable likelihood of misidentification at
the trial. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199
(1968).
11
As recited in detail by the trial judge's opinion, there is no evidence on the
record in this case that the pretrial identification procedures were so inherently
unfair or impermissibly suggestive as to give rise to a substantial likelihood of
irreparable misidentification. Absent such a showing, evidence of even postindictment photographic identification will not render in-court identification
inadmissible.
12
Appellant further contends that the custodial interrogation conducted by Agent
McCarthy of the FBI, which occurred after counsel had been appointed but
without notice to or permission of counsel, violated appellant's right to counsel
as guaranteed by the Sixth Amendment and that incriminating statements made
by the appellant in the course of the interrogation should be declared
inadmissible.
13
On March 29, 1972, two days after appellant's arrest, Agent McCarthy visited
him in the Allegheny County Jail. The Agent read the Miranda warnings and
took a written waiver from the appellant. The appellant then proceeded to state
orally that he and another man had in fact committed the robbery in question
and described to the FBI Agent the details surrounding the event. The trial
court determined that the oral confession had been intelligently and voluntarily
made and permitted the same testimony to be repeated in the presence of the
jury. We agree with the decision of the lower court.
14
The fact that a defendant has an attorney does not mean that law enforcement
officials cannot procure a statement of any kind from the defendant without
prior notice to, if not the consent of, the attorney. United States v. Springer, 460
F.2d 1344 (7th Cir. 1972). The court in Springer, supra, held that a
constitutional right such as the right to counsel may be waived, although there
is a higher standard imposed to show waiver of the presence of counsel once
counsel has been appointed than before.
15
In Coughlan v. United States, 391 F. 2d 371 (9th Cir. 1968), cert. denied, 393
U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139,2 oral statements were testified to in
court by police officers who interviewed the defendant in a jail interview room.
The officers knew that the defendant was represented by counsel, but counsel
knew nothing about the interview. As is true here, the defendant in Coughlan,
supra, was fully warned, before he made any statements, of his Miranda rights;
but he waived those rights. The court held that the statements made by the
defendant were admissible into evidence, although it further indicated
disapproval of the practice of interviewing prisoners in the absence of their
attorneys.
16
The appellant, Cobbs, was fully cognizant of his rights at the time he made the
incriminating statements. He freely and intelligently waived his constitutional
rights by signing the written waiver and by making the oral statements to Agent
McCarthy implicating himself in the robbery. If the officers' custodial
interrogation was legally permissible, appellant's right to counsel was not
violated. The District Court's holding that it is permissible for a law
enforcement official to interview a defendant, even though the defendant has
counsel and even though that counsel is not consulted as long as the proper
Miranda warnings are given, as applied to the case before us, is the correct
holding.
17
Although the practice of custodial interrogation in the absence of and without
the permission of retained or appointed counsel is technically permissible, the
practice is not commendable.3 The relationship between lawyer and client risks
significant erosion and the ability of counsel to effectively represent his client
is seriously jeopardized when this kind of interrogation ensues. These risks
would be materially reduced if in such situations the District Court, in inquiring
into the voluntariness of such statements would expert the prosecution to
demonstrate that the waiver of the presence of counsel was knowing and
intelligent. Also, in cases where this issue is important, the Government's
evidence in support of the voluntariness of the waiver should also include
evidence to the effect that the accused, prior to making a statement, specifically
acknowledged that he was aware that he was represented by an attorney. While
we emphasize that we do not consider such evidence as mandatory, we do
believe that the consideration of such evidence by the District Court is a
stronger and, therefore, a more preferable basis upon which to conclude that the
evidence in question should be received. Other Federal appellate courts have
encountered the same problem with the same feeling. See, United States v.
Smith, 7th Cir., 379 F.2d 628, 633, cert. denied, 389 U.S. 993, 88 S.Ct. 491, 19
L. Ed.2d 486. In addition to the basic legal and ethical problems appearing in
these cases, the economical paradox that is evident when one arm of
Government pays money from its treasury to afford counsel to an accused (as in
this case where court-appointed counsel is used), while another arm of
Government uses money from its treasury in an effort to keep the accused and
his lawyer apart, justifies without more the need for a greater showing by the
Government of the usefulness of such evidence.
18
The incriminating statements made by the appellant in the case before us are
admissible for, viewed in the light of the current authorities, the accused
deliberately and voluntarily chose to speak with the FBI Agent and implicate
himself in the robbery.
19
Agent McCarthy also testified that appellant made certain oral statements
implicating himself in the crime under investigation while riding in the
automobile from the place of arrest to the Federal Building in Pittsburgh.
Appellant now contends that these statements should have been suppressed,
alleging in substance that the statements were involuntarily and unlawfully
coerced from him. This contention is unfounded. Although Agent McCarthy
testified before the jury that he initiated interrogation of the appellant regarding
the crime in the automobile after the "Advice of Rights" and "Waiver of
Rights" form had been signed by Cobbs (and which appellant admitted
signing), the incriminating statements were made by the appellant completely
of his own volition. The statements were not prompted by any investigatory
questioning on the part of Agent McCarthy. The appellant initiated the
conversation by asking how much money had been stolen. Agent McCarthy
answered the question and Cobbs' unsolicited and freely offered response to the
Agent's answer was "You mean he got that, too" and later, "I only got $150 or
$175." There is no reason why these two statements should be suppressed.
20
Appellant contends that the testimony given in regard to Count II of the
indictment does not support the burden of proof which the prosecution must
carry to prove the charge. The issue presented is the sufficiency of evidence
necessary to establish a violation of Sec. 2113(d). The trial court, relying on
United States v. Roach, 321 F.2d 1 (3rd Cir. 1963), defined the burden of proof
as "simply a question of whether the lives of the victims are put in danger
because jeopardy means danger." A jury may find that the jeopardy exists from
the use of a deadly weapon during a robbery, even if there was no discharge of
the weapon or the placing of it against the body. A finding in the instant case
that the lives of Trude Smith and Margaret Morgan were put in jeopardy by the
use of a dangerous weapon is certainly reasonable in view of the evidence
presented. There was ample testimony received at trial demonstrating that the
gun was used in seriousness and as an essential element of the robbery scheme.
Both witnesses testified that the gun was exposed throughout the robbery, with
the gunman brandishing the weapon in order to obtain compliance with his
unlawful and fear-provoking dictates.
21
Sufficient evidence was presented to establish that the gunman placed the lives
of the victims in jeopardy with the weapon, in violation of 18 U.S.C. Sec.
2113(d).
22
The trial court's charge to the jury was proper and in accordance with the law.
23
The judgment of the United States District Court for the Western District of
Pennsylvania will be affirmed.
Two men have been indicted for the robbery, one of whom has not yet been
apprehended
In accord are Cephus v. United States, 122 U.S.App.D.C. 187, 352 F.2d 663
(1965); Reinke v. United States, 405 F.2d 228 (9th Cir. 1968); United States v.
Dowells, 415 F.2d 801 (9th Cir. 1969). In Reinke, incriminating statements
made by accused to the FBI were admissible though the Agent knew that
counsel had been appointed for accused and failed to get authorization of
counsel before proceeding with the interview, where accused initiated the
conversation; appropriate Miranda warnings were given and accused fully
understood his Miranda rights. It is not clear on this record that the Agent knew
at the time he took the waiver and the oral statement that counsel had, in fact,
been appointed
See, United States v. Wedra, 343 F. Supp. 1183, 1188 (D.C., 1972) and
Coughlan v. United States, supra, indicating disapproval of the practice
