was calm, lucid, friendly and cooperative. His answers were direct and concrete, he understood his plight, and the questions that he put to Mr. Keogh demonstrated lucidity and comprehension as well as rational though processes. I find that he was well oriented in time and place, had nicely and precisely calculated what he wanted to achieve and how to achieve it, and in all respects was acting of his own free and well controlled will and disposition.
About 11:00 a.m. the defendant told Mr. Keogh that, since the agents had said they would try to have him placed in federal custody, he was satisfied and would now tell them about the bank robbery. I find that he received nothing more than this assurance, that he was neither threatened nor coerced, and that he continued to act voluntarily, knowledgeably, and intelligently.
The conversation continued calm and quiet. There was no shouting or threatening. The atmosphere was a "calm and friendly" one. The defendant's manner and demeanor remained unchanged.
Before the agents would allow him to inform them about the bank robbery, and at 11:01 a.m., Mr. Keogh presented to the defendant a waiver of rights form which was read to the defendant and which he read and then signed.
The reading concluded at 11:05 a.m., at which time the defendant affixed his signature. During the course of the interview the defendant was definite and specific in details that he gave.
Some of the information that was provided was known by the agents before that time and some had not been known. The defendant, at the conclusion of the statement, told the agents that he had felt that the government would not be able to prove his participation since he had read in the newspapers that it was believed a woman had been driving the car whereas it was he, wearing a female wig.
Mr. Keogh himself wrote the statement, starting at 11:35 a.m. and concluding at 11:58 a.m.; and then, showed it to the defendant. Also, even as he wrote it, he would stop to review and verify with the defendant details earlier narrated by him to the agents.
Mr. Keogh told the defendant to read the statement and, if it was accurate, to initial the first page and thereafter add a paragraph indicating that he had read and understood it and that it was true and correct at the end. As the exhibit reflects, this was done. I reject as unworthy of belief the defendant's testimony that he simply did what the agents directed, without reading the statement. He now confirms its accuracy at this hearing, except for one minor detail. I find he had to be thinking clearly, and with a normal intellectual capacity at the time he confessed, to recall and to supply the abundant detail embodied in the confession.
During the course of the interview the defendant orally identified his "friend," as mentioned in the statement, as Mauchlin, a codefendant in this case. The defendant said he had obtained a gun which he gave to Mauchlin. At the hearing, testifying while Mauchlin sat in the courtroom nearby, the defendant denied he had implicated Mauchlin.
The defendant was taken from the room and back to his cell at about 12:10 p.m. after signing the statement.
At no time did the defendant ask for an attorney or request that the interview be stopped. I find that he knew and had been repeatedly advised of his right to an attorney and that this right, like his Fifth Amendment right, was voluntarily, knowingly, and intelligently waived by him.
The next and last witness called by the United States was Dr. Ralph Brancale. He has been a forensic psychiatrist for many years and has been in the field of psychiatry for 40 years. He is Director of Menlo Park diagnostic center and has outstanding credentials. He conducted two psychiatric examinations of the defendant, one on January 18 and another on January 28, 1974. He was called by the United States to render an opinion as to defendant's status on June 7, 1973, when he confessed, an opinion founded upon hypotheses inclusive of his own examinations and diagnosis and the testimony of the witnesses for the United States as heard by Dr. Brancale while he sat in the court room.
I have decided not to place the testimony of Dr. Brancale into the scales of this hearing. Essentially, there is no necessity for any psychiatric testimony on the issue placed before me. The key to voluntariness is to be found in the facts as I determine them to be. The testimony of the officers and agents, which I find credible and accept, leads to only one conclusion, that the defendant was rational, clear, lucid, in possession of his faculties, and able to make cognitive judgments and decisions. Strikingly demonstrative of this is his own analysis of his position as he sat in the Harrison station and his implementation of his decision that he would achieve for himself federal custody. Accordingly, I expressly disregard the testimony given by Dr. Brancale.
Mr. James Spratt was defendant's first witness. He is associated with Patrick House, a methadone maintenance center in Jersey City. He first met the defendant in January 1972 when the defendant was a drug addict. On June 6, 1973 the defendant came to the clinic between 5 and 5:30 p.m. It appeared that he had "detoxified" at his own request 3 or 4 days before, had left the clinic, and now sought readmission because he could not bear being on the street. They talked for a half to three-quarters of an hour and it was agreed that the defendant would be readmitted. However, he could only be given a small dosage (20 mgm.) of methadone at that time (6-6:30 p.m.) and would have to return the next night (June 7) to see a physician. Defendant's right eye was very badly blackened and protruded beyond his nose. He looked drawn, pale, tired and withdrawn. He said that he was "sick," had been drinking and "shooting" drugs, and that he was sorry he had left the clinic.
Mr. Spratt was advised early the next afternoon (June 7) that the defendant was in the Harrison Police Department asking that he be medicated. Mr. Spratt took a small quantity of methadone to the Harrison jail where, at about 6:00 p.m., he administered it to the defendant who was quiet, withdrawn, and depressed. The defendant told Mr. Spratt that he had "shot a guy" in Newark and two officers present said that the man was in "severe" condition.
Mr. Spratt described all of the symptoms of withdrawal. Withdrawal from methadone can be worse than heroin withdrawal. He indicated in general terms that there would have been a withdrawal at the time of the F.B.I. interview, that is, 11:00 a.m. on June 7, manifested by sniffles, running nose, sweating, general weakness, pains in the elbows, knees and joints, running eyes, stomach cramps and vomiting. Yet, as I have found, none of these symptoms were observed by the government's witnesses, and thus I must conclude, accepting their testimony as I do, that the defendant was not in withdrawal before 12:00 noon on June 7.
Mr. Spratt then stated that on the other hand if the defendant was "high" he would be in a state of euphoria. Yet, neither was this condition observed by the government witnesses, as I credit and understand their testimony. If he was somewhere between "high" and "withdrawal," his condition would have been comparable to anyone not under the influence of narcotics and methadone.
Mr. Spratt was an honest and credible witness. However, his testimony is subject to the limitations imposed by his non-medical background and the many uncertainties introduced by imponderables about which he had no knowledge and could make no worthwhile assumptions. Finally, as I have repeatedly emphasized, the officers and agents actually saw the defendant in the morning of June 7; and I accept their testimony about his condition at the times they observed it.
Also on the defendant's case, his father testified that he visited his son in jail in the evening of June 7 at about 7:30 p.m. Defendant had cut himself with some glass from a light bulb he had broken. Apparently the inference urged is that he had attempted suicide; however, no medical treatment was necessary. In any event, this occurred subsequent to the administration of methadone by Mr. Spratt.
The defendant then testified in his own behalf. He reiterated what Mr. Spratt had stated as to his Patrick House treatment and stated he had been in jail 13 of the last 15 years prior to June of 1973. He is now 30 years of age.
He denied he was given his Miranda warnings by anyone other than the F.B.I. Yet, in further testimony, he endeavored to create the impression he could recall little of what had gone on because he was "high." As I have said, I find he was advised of his rights, both by Sgt. Dombrowski and Lt. Villanova. The defendant, if believed, would have been virtually unconscious, and detached from reality, from all the drinking he testified he had done after getting methadone at 6:00 p.m. on June 6. Indeed, he even claimed to have "shot" cocaine during the evening of June 6-7. Yet he had driven an automobile from Newark to Harrison without incident, so far as we know, and the testimony is clear that he did not give off an odor of alcohol or indicate any unsteadiness when taken from the car. No one, of course, other than the defendant himself, knows what he drank or "shot" after taking the methadone; however, I must refer to the credible testimony of the government witnesses as to defendant's condition in the morning of June 7 as they observed it. Other portions of defendant's testimony are hereinabove referred to as clarity mandates. See, for example, notes 2-11 and 12-14, and accompanying text.
On the basis of the foregoing findings, judged in the light of applicable legal principles, I hold that the defendant voluntarily, knowledgeably and intelligently waived his constitutional rights with a full understanding of the Miranda statements I find were made to him on two occasions by the Harrison officers, and, later, by the F.B.I., and that his confession to the F.B.I. was voluntarily, knowledgeably and intelligently made, while the defendant was in full possession of his faculties, and was not the product of an overborne will.
For a defendant's confession to be voluntary, and thus admissible, the government must prove by a preponderance of the evidence that his will was not overborne and that the confession was the product of a rational intellect. See Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); Townsend v. Sain, 372 U.S. 293, 307, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963); United States v. Silva, 418 F.2d 328 (2d Cir. 1969); Gladden v. Unsworth, 396 F.2d 373 (9th Cir. 1968); 18 U.S.C. § 3501. In resolving the issue of voluntariness, a court must consider the "totality of circumstances." Boulden v. Holman, 394 U.S. 478, 480, 89 S. Ct. 1138, 22 L. Ed. 2d 433 (1969). Some relevant factors include "the age, mentality, and prior criminal experience of the accused; the length, intensity and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement." Brown v. United States, 356 F.2d 230, 232 (10th Cir. 1966).
Defendant's Claim That His Waiver of Rights and Confession Were Drug Induced
Even when it is charged that a confession was given under the influence of narcotics or during a withdrawal period, the central question of voluntariness vel non remains the same. There is no per se rule mandating that confessions made under such circumstances are inadmissible. Wade v. Yeager, 245 F. Supp. 62, 65 (D.N.J. 1964); Ortiz v. United States, 318 F.2d 450, 453 (9th Cir. 1963), cert. denied, 376 U.S. 953, 84 S. Ct. 971, 11 L. Ed. 2d 972 (1964); Comment, Admissibility of Confessions and Denials Made Under the Influence of Drugs, 52 Nw. U.L. Rev. 666 (1957); Note, Some Problems Relating To the Admissibility of Drug Influenced Confessions, 24 Brooklyn L. Rev. 96 (1957); Annot., 69 A.L.R. 2d 384 (1960). As stated by the Court of Appeals in this Circuit in United States v. Dutkiewicz, 431 F.2d 969, 970 (3d Cir. 1970), where the defendant had claimed to be under the influence of narcotics at the time of his confession:
"The question in each case is whether the [appellant's] will was overborne at the time he confessed" Lynumn v. State of Illinois, 372 U.S. 528 at 534, 83 S. Ct. 917 at 920, 9 L. Ed. 2d 922 (1963).
Thus, the trial court must scrutinize all of the pertinent facts attending the confession with particular focus upon a confessing defendant's demeanor, coherence, articulateness, his capacity to make full use of his faculties, his memory, and his overall intelligence.
The Supreme Court in Culombe v. Connecticut, 367 U.S. 568, 601-602, 81 S. Ct. 1860, 1878, 6 L. Ed. 2d 1037 (1961), stated:
. . . No single litmus-paper test for constitutionally impermissible interrogation has been evolved . . . the ultimate test remains . . . the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Rogers v. Richmond, 365 U.S. 534 [81 S. Ct. 735, 5 L. Ed. 2d 760]. The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession. [emphasis supplied]
Was the defendant's "capacity for self-determination critically impaired"? The fundamental decision he made to escape from state custody into federal confinement negatives any such impairment. Even when frustrated initially by Lt. Villanova's calling in the North Bergen police, the defendant remained fixed in his ultimate objective. He would relate nothing to these officers, although the bank robbery was in their community. He refused to identify the man whose photograph they had. He continued to importune Villanova to bring the F.B.I. to him. His reasons for so doing are hereinabove set forth. His capacity for self-determination was unimpaired, and, indeed, it continued to function even as he dealt with the F.B.I. and insisted upon imposing conditions to his conveyance of information. His shrewd scheming to free himself from serious state charges hardly are reflective of an overborne will.
Of critical importance too is that he had not been victimized by extensive interrogation before making his decision to confess to the F.B.I. Brought to the police station at 3 a.m. and placed in a cell at 3:10 a.m., I find that no questioning of him of any kind took place thereafter up to that time when he sent the message which brought Lt. Villanova to him. It was his own idea, brought on not by intensive interrogation; until the moment he mentioned a bank robbery to Lt. Villanova he was under no suspicion whatever so far as that crime was concerned. It is true he was in custody, but not for bank robbery. No investigation of that crime had focused on him. It was he who projected himself into that particular spotlight, clearly an act of "self-determination" when his motives are analyzed as has been done herein.
As for the other factors to be considered, as has been thoroughly covered in the Court's findings of fact, the defendant's demeanor, coherence, memory, comprehension, and perception all militate against his claim of involuntariness.
Accordingly, as I have already found, defendant's confession is not rendered involuntary because of the alleged impact of drugs. Ortiz v. United States, supra, 318 F.2d at 453; United States ex rel. Sadler v. Commonwealth of Pa., 306 F. Supp. 102 (E.D. Pa. 1969), aff'd., 434 F.2d 997 (3d Cir. 1970); United States v. Welsh, 417 F.2d 361 (5th Cir. 1969); Shinko v. United States, 408 F.2d 361 (9th Cir. 1969).
Was There A Violation of the Six-Hour Requirement of 18 U.S.C. § 3501(c) ?
18 U.S.C. § 3501(c) provides:
In any criminal prosecution by the United States or by the District of Columbia, a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer or law-enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate or other officer empowered to commit persons charged with offenses against the laws of the United States or of the District of Columbia if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or detention: Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in brining such person before such magistrate or other officer beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate or other officer.