United States v. Frank R. Coppola , 281 F.2d 340 ( 1960 )

MOORE, Circuit Judge.

Subsequent to the argument and decision of this case by the original panel, the United States petitioned for a rehearing en banc as to the defendant, Frank R. Coppola. 28 U.S.C.A. § 46(c). Because of the importance of the question involved, the petition was granted and a second argument was heard by all the active judges of the court.

The defendant, Frank R. Coppola, was convicted, after a trial by jury in the Western District of New York, on all three counts of an indictment charging violations of 18 U.S.C.A. § 2113(a) and (b). The first count alleged that defendant on or about February 15, 1956 by force, violence and intimidation, took approximately $52,529 from a branch of the Manufacturers and Traders Trust Co. in Buffalo, New York, said company being a member of the Federal Reserve System; the second count charged defendant with entering that bank with intent to commit larceny; and the third count charged him with taking and carrying away from that bank, with intent to steal, the sum of approximately $52,529.

Coppola’s sole contention on this appeal is that admissions made by him, oral and written, were improperly received in evidence against him. He claims that these admissions were made during an illegal detention¹ by the Buffalo police acting under a “working agreement” with the F. B. I. and that the admissions should therefore have been excluded under Anderson v. United States, 1943, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829. We do not agree. We conclude upon an analysis of the facts that the trial judge properly found that the F. B. I. in no way caused or contributed to Coppola’s detention by the Buffalo police. Consequently, the doctrine of the Anderson case is inapplicable and the judgment is affirmed.

To resolve the issues here presented a thorough review of the circumstances under which the admissions were given must be made. On January 4, 1957 the butcher shop of Paul Redlinski, in Buffalo, New York was robbed. The robbery was under investigation by the Buffalo police. On January 7, 1957 the Agent-in-Charge of the F. B. I. in Buffalo, John A. Roche, relayed to John M. Golombeck, Chief of Detectives of the Buffalo police, information that the defendant Coppola and two others, D’Antuono and Simmons, had committed the robbery. Roche furnished Golombeck with photographs of these three individuals. Redlinski identified Coppola. On January 9, 1957 Roche again communicated with Golombeck and informed him that the F. B. I. had information that the same three individuals were contemplating a holdup at 10:00 A.M. the next morning, January 10 — probably of the El Chico Tavern on Clinton Street, in East Buffalo. Roche also gave the same information to John Dwyer, District Attorney of Erie County “so that he might take whatever action he desired to protect the citizens of Buffalo and prevent, if possible, another holdup.” ' He also told Dwyer that the F. B. I. had been investigating Coppola in connection with the holdup by two masked men of the Clinton-Bailey branch of the Manufacturers and Traders Trust Company on February 15, 1956 and the robbery of the Linwood Branch of the Liberty Bank of Buffalo on October 2, 1956.

Having received this information, the Buffalo police stationed details from their own force in five different taverns where they suspected the holdup might take place. On the morning of January 10, Golombeck and two other members of the Buffalo police force were in a car in the vicinity of the El Chico Tavern. Observing a car in which Coppola, D’An-tuono and Simmons were the occupants, the police officers intercepted them and took them to Buffalo police headquarters. Sometime thereafter, but before noon, Golombeck advised Roche of their apprehension. Roche, Golombeck, Dwyer and Klenk (a member of the Buffalo Police Department) had lunch and thereafter, with Dwyer, Roche visited Coppola in police headquarters. Dwyer told Cop-' pola that he was interested in him in connection with a series of crimes and' specifically questioned him about the Redlinski robbery. Roche questioned Coppola briefly about the M. & T. robbery, but left to secure a form permitting a search to be made of Coppola’s home. Although he had originally stated that he had no objection to a search, when Roche returned with the form, Coppola declined to sign it and no search was made. The afternoon and early evening at police headquarters was taken up largely by various appearances of the three individuals in the “show-up” room and with interrogation by the Buffalo police concerning the Redlinski robbery, a robbery on East Eagle Street, Buffalo, and a crime in Niagara Falls, all state offenses.

Later that evening, at about 9:00 P. M., after a second “show-up” at police headquarters, agents of the F. B. I. talked to the prisoners about the bank robberies. During the course of these interrogations (commencing at about 9:40 P.M.), the admissions which were received in evidence were made by Coppola. The next day, January 11, before noon, the F. B. I. requested that Coppola be delivered to them so that he could be arraigned on the federal charges. He was not delivered immediately but first arraigned by the Buffalo police, at about 2:00 P.M., before a local magistrate in the City Court of Buffalo. Thereafter he was turned over to the F. B. I. and promptly arraigned before a United States Commissioner.

At the trial Coppola urged that his admissions should be suppressed. A hearing was held by the trial court without the presence of the jury at which members of the Buffalo police force and the F. B. I. testified. The court concluded that the statements were not obtained by means of coercion or unlawful collaboration between local and federal officials and denied the motion to exclude the evidence.

In Anderson v. United States, supra, the Supreme Court held that admissions made to F. B. I. agents during a detention by state officers, who were acting at the behest and upon the instructions of the federal officials, were inadmissible because the detention was under circumstances unlawful under the rule of McNabb v. United States, supra, later codified by Rule 5(a) of the Federal Rules of Criminal Procedure. In that case property owned by the Tennessee Valley Authority, a corporation in which the United States is a stockholder, had been damaged by dynamiting — a violation of the Federal Criminal Code. F. B. I. agents were called in to investigate. Various suspects were taken into custody by the local sheriff and detained in a building. The questioning, however, with relation to the federal crime was carried on by federal officers over a period of days. No state criminal charges were preferred during the period of detention or at any time thereafter against the defendants. There is no indication that the state officers participated in the interrogation or were endeavoring to solve any state crime. Upon the facts it was quite apparent that the state detention was solely to enable federal officers to pursue their investigation and that the federal agents were responsible for the long delay in arraignment. Hence, the Supreme Court concluded that there existed a “working arrangement” between the federal officers and the local sheriff and that the sheriff was in effect acting as an agent for the F. B. I.

Coppola urges that the facts surrounding his detention fall within the scope of the Anderson decision. We do not agree. The differences in the facts are signficant. Here Coppola and his two companions were arrested by the Buffalo police on their own initiative because of information that they had committed and were about to commit a crime or crimes in violation of state law. The arrangements to intercept and detain the three men on the morning of January 10 were exclusively planned and executed by the Buffalo police without any suggestion or participation by the F. B. I. In fact Coppola’s counsel specifically stated that “I do not claim that the Buffalo police made an arrest at the behest of the F. B. I.” The arrest and detention were not to aid or abet the F. B. I. in their investigation or for the purpose of enabling them to interrogate the persons apprehended about federal matters while in state custody. The apprehension and the detention were for questioning about the Redlinski robbery and other local robberies exclusively within the jurisdiction of the Buffalo police. At police headquarters after the arrest, the Buffalo police questioned Coppola and his companions concerning the state offenses. The record shows that the state concentrated on its own business first. These investigations and the necessary appearances in the local “show-ups” occupied most of the day. Coppola could not have been arraigned after 5:00 P.M. on January 10, 1957 in the Buffalo City Court.² The next time he could have been arraigned was the following morning so that F. B. I. interrogation that evening did not contribute to any delay in arraignment. When questioned by the F. B. I. agents, Coppola was fully advised that he did not have to make a statement, that any statement could be used against him, and that he was entitled to advice of counsel. However, he indicated a willingness to talk and dictated a statement which was taken down in handwritten form, read over by him and then signed. Coppola had had grammar school and junior high school education as well as an accounting course for approximately a year at a business college. He was able to read and understand that which he signed. There is no evidence of any coercion, mistreatment or abuse. There is no claim made that there was any delay in arraignment by the F. B. I. or that any admissions were made during the period between his release by the local authorities and his arraignment before a United States Commissioner.

The cases other than Anderson v. United States, supra, cited by Coppola’s counsel involved fact situations wholly different from that of the case before us. In Byars v. United States, 1926, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520, a federal officer accompanied state officers on an illegal search and seizure. There upon the facts the court held that the illegal search “was a joint operation of the local and federal officers” and that “the effect is the same as though [the federal officer] had engaged in the undertaking as one exclusively his own.” Id., 273 U.S. at page 33, 47 S.Ct. at page 250.

In Gambino v. United States, 1927, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293, state officers conducted an illegal search and seizure looking for intoxicating liquor in the days of the National Prohibition Act. The court held that the action of the state troopers in endeavoring to enforce the Act was such that it could be said that the illegal search was “solely for the purpose of aiding in the federal prosecution.” Id., 275 U.S. at page 315, 48 S.Ct. at page 138.

McNabb v. United States, supra, involving as it does an arrest and detention solely by federal officers without participation by local officials, is also not controlling upon us in this case.

In complete contrast with the cases upon which appellant relies, there is in this record no basis for the conclusion that the apprehension and continued detention of Coppola and his two companions was at the behest of federal officers or for the purpose of aiding any investigation they wished to conduct. That the Buffalo police notified the F. B. I. of the defendants’ apprehension would be normal police procedure. Only by such an interchange of information can society be adequately protected against crime. The custody of the defendants after arrest was exclusively that of the Buffalo police, as was their interrogation. However, once the F. B. I. knew of the defendants’ arrest, it was their duty to endeavor to ascertain all the available facts about the federal crimes-which they were investigating. To do this the F. B. I. agents were obliged to-conduct their interrogation in the local police station and of course to obtain consent of the local police. That the apprehension and detention were exclusively for state crimes is reflected by the fact that, except for the brief conversation in the afternoon when permission was sought to search Coppola’s-home, not until well along in the evening was any opportunity given to the F. B. I. to question the defendants concerning the matters in which the federal officers were interested.

Appellant argues that from February 15, 1956, the date of the M. & T. bank robbery, until defendants’ arrest on January 10, 1957, the Buffalo police and the F. B. I. collaborated in trying to solve the crime, and from this fact would draw the conclusion that there must have been a “working arrangement” between them. Mere words however, such as exchange of information, cooperation, collaboration, or even “working arrangement” do not carry within themselves any solution to the difficult problems of federal-state relations here involved. If this cooperation-reached the point of arrest and detention by local police for the purpose of enabling federal officers to question the defendants concerning the bank robberies for a period of time forbidden to-federal officers by Rule 5(a) of the Federal Rules of Criminal Procedure, admissions thus obtained would properly be excluded. Such a rule prevents federal officers from evading the letter and the spirit of Rule 5(a). The rule excludes confessions when the “working arrangement” includes the illegal detention — in other words, when federal law enforcement officers induce state officers to hold the defendant illegally so that they may secure a confession. However, to bring a case within this rule there must be facts, as there were in Anderson, not mere suspicion or conjecture. Here, as in United States v. Abel, 2 Cir., 1958, 258 F.2d 485, 494, affirmed, 1960, 362 U.S. 217, 226-230, 80 S.Ct. 683, 4 L.Ed. 2d 668, rehearing denied, 1960, 80 S.Ct. 1056, there is no basis on which this court can properly reverse the conclusion of the district judge. The Supreme Court’s decision in that case makes plain that the mere fact that two or more agencies have the same crime or the same suspects on their books and that they are cooperating to achieve a solution does not make one the agent of the other and thus responsible for the other’s acts.

If there is to be effective law enforcement, it is to be expected that every police agency, be it state, county, city or federal, will cooperate and exchange information. Probably the F. B. I. and local police have in countless cases the same crimes and the same suspects on their books. Undoubtedly after the Liberty Bank robbery in the present case, both state and federal agencies had the crime under investigation. However, there is no evidence that the F. B. I. had any knowledge whatsoever of the action the Buffalo police might take as a matter of local law enforcement. Nor is there any reason why the local officials should have discussed their proposed action with the F. B. I. In the absence of any evidence of collaboration to achieve an unlawful end, we would not be warranted in creating a rule whereby prior cooperation of state and federal officials in the investigation of crime would prohibit the admission of uncoerced confessions made during a detention by state officers which the Federal officials did not induce and were powerless to prevent.³

The judgment of conviction is affirmed.

CLARK, Circuit Judge.

I dissent. I concur in Judge WATERMAN’S dissenting opinion.

1 . The government concedes that the delay of several hours by the local police in arraigning Coppola constituted an unlawful detention under New York law. See People v. Lovello, 1956, 1 N.Y.2d 436, 154 N.Y.S.2d 8, 136 N.E.2d 483. In our view, however, whether a detention is illegal under state law has no bearing upon the propriety of receiving admissions in evidence in a federal criminal proceeding.

Had tbe arrest and subsequent delay in arraignment been occasioned by federal officers, it is most probable that Coppola’s detention would have been in violation of Rule 5(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. See McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819.

2 . Both, counsel agreed to this fact upon the oral argument on December 15, 1959.

3 . Recent decisions of other circuits in cases involving facts similar to those here have rejected attacks upon the admissibility of evidence obtained by federal agents during a state detention on the ground that the relationship between the local and federal authorities was not comparable to the “working arrangement” described in Anderson v. United States, supra. See White v. United States, 5 Cir., 1952, 200 F.2d 509; also Carpenter v. United States, 4 Cir., 1959, 264 F.2d 565, certiorari denied, 1959, 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548; Stephenson v. United States, 6 Cir., 1958, 257 F.2d 175; Papworth v. United States, 5 Cir., 1958, 256 F.2d 125, certiorari denied, 358 U.S. 854, 79 S.Ct. 85, 3 F.Ed.2d 88.