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UNITED STATES v. ARCEDIANO

February 6, 1974

UNITED STATES of America
v.
Michael James ARCEDIANO, Defendant


Lacey, District Judge.


The opinion of the court was delivered by: LACEY

Defendant, Michael Arcediano, indicted under 18 U.S.C. § 2 on two counts of aiding and abetting a bank robbery, 18 U.S.C. § 2113(a) and (d), moves before trial to suppress his signed confession to the Federal Bureau of Investigation on June 7, 1973, made after his execution of an F.B.I. waiver of rights form. Cf. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); and see Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). Defendant's motion is founded principally upon the assertion that the aforesaid confession was involuntary and hence inadmissible because it was made while under the influence of methadone, narcotics, and alcohol, either while he was "high" or in withdrawal. Additional grounds urged for suppression are that the defendant did not comprehend the F.B.I. form, and that, even if the said form was properly executed, his earlier "interrogation" by local police was conducted without appropriate Miranda [384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)] warnings, thereby tainting all which followed, including his confession to the F.B.I. Cf. Westover v. United States, 384 U.S. [436] at 494, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), a companion case of Miranda.1

 I find the following facts from the Jackson v. Denno hearing conducted by me on January 29 and 30, 1974, immediately prior to commencement of trial, at which police officers and F.B.I. agents testified on behalf of the United States, and the defendant, his father, and defendant's friend, James Spratt of Patrick House, a methadone maintenance center in Jersey City, New Jersey, testified on defendant's behalf. Cf. 18 U.S.C. § 3501.

 At Police Headquarters the defendant went before Lieutenant Villanova, who was on desk duty, and was booked; and was then taken into another room and "processed" by Sgt. Dombrowski and his partner, who obtained certain personal data from the defendant, such as his full name, address, etc. No investigative interrogation concerning the defendant's criminal activity occurred at this time. The two officers and the defendant had arrived at the police station at 3:00 a.m. Upon completion of processing about 3:05 or 3:10 a.m., the defendant was lodged in a cell.

 Of emphatic significance on movant's claim of involuntariness are the following findings: From the moment that he was apprehended, until he was placed in a cell about 3:10 a.m., the defendant responded promptly to all of the commands given him by the arresting officers. His comprehension of the officers' directions and questions was well within normal limits. He walked steadily and his speech was neither rambling nor incoherent. He gave off no odor of alcohol. His demeanor was normal; and at no time did Sgt. Dombrowski observe him with his head down or depressed. The officers did observe that he had a badly bruised left eye, an injury he had received in a fight with the man whom he had shot. He did not complain of pain or illness, and did not request methadone, narcotics, or medication. Although he had volunteered to the arresting officers that he had shot someone and was driving a stolen automobile, he said absolutely nothing to them concerning the crime with which he is charged in this proceeding. While there was some suggestion that police officers from another municipality were also present in the processing room, cross examination of Sgt. Dombrowski failed to develop this into finite fact; and I must therefore conclude that, as has hereinabove set forth, no substantive interrogation of the defendant took place in the time interval 3:00-3:10 a.m. *fn2"

 Turning for a moment to the testimony of the defendant, as it related to the period from 2:45-3:10 a.m., it was in numerous particulars irreconcilable with that of Sgt. Dombrowski. Unfortunately, defendant's testimony was riddled with self-contradictions. He endeavored, as to questions directed at certain specifics of this early morning encounter, to avoid a response by claiming he "was flying" or "high," by reason of narcotics or alcohol or a combination thereof, and thus lacked recollection. Yet, in his unguarded moments as a witness, when he seemingly felt it served his interests, he professed a meticulous recollection of even minute detail. This pattern of behavior as a witness also marked his testimony regarding events after 3:10 p.m. I observed him closely as he testified. Regretfully, I find I must reject substantial portions of his testimony, as is hereinafter set forth, as unworthy of belief. Lt. Charles Villanova followed Sgt. Dombrowski as a witness for the United States. He confirmed that the defendant had been brought into the station house shortly after 2:45. He had no conversation with the defendant until after 3:15 a.m. Thus, at a time after 3:15 a.m., and still prior to any police interrogation, the defendant, from his cell, called to a policeman in charge of the cell block that he wanted to see the officer in charge; and Lt. Villanova respondent. The defendant told him he wished to speak to an F.B.I. agent. Lt. Villanova said he required justification for calling the F.B.I.; and the defendant stated that, if he had to do time, he would rather do federal than state time. Lt. Villanova repeated that he needed justification for calling the F.B.I. The defendant then told Villanova that he wanted to give the F.B.I. information regarding a bank holdup in North Bergen. *fn3"

 At this point Lt. Villanova gave defendant his Miranda rights. Defendant said nothing more at this point except to continue to press for the F.B.I. to be brought to his cell; and Lt. Villanova told the defendant he would try to arrange it.

 Lt. Villanova, however, decided he would first call the North Bergen police to verify whether there had been a bank robbery in that municipality. In response to this call two detectives from North Bergen came to the Harrison station house at about 6:00 a.m. and were taken to the defendant's cell by Lt. Villanova. They had a photograph with them of someone who, it was alleged, had been involved in a North Bergen bank holdup. They compared it with the defendant and stated that he was not the one in the photograph. When the defendant realized that they were from North Bergen he remained silent and would say nothing. This brief confrontation lasted but a few minutes, nothing of any consequence took place or was said. The defendant was asked if he knew the man in the photograph, but he refused to respond. *fn4"

 After the departure of the North Bergen police, Lt. Villanova was told by the defendant that "those fellows " were "off base" and that "they turn me off." Lt. Villanova then told the defendant that if he, the defendant, wanted F.B.I. agents brought in so he could admit to them his participation in the bank holdup, he, Villanova, would call them. The defendant then stated that the picture he had been shown by the North Bergen officers was not of him; while the robbery was being committed, he had stayed in the car and wore a female wig. *fn5" During this entire period of time, as Lt. Villanova and the defendant conversed, the latter was quite composed, answered questions responsively, and engaged in normal conversation. He asked questions that were "sensible" and he did not ramble in his speech. His ability to withstand interrogation was demonstrated by his rebuff of the North Bergen police. His perception was exhibited by his awareness that they were police officers, not F.B.I. agents. His logical analysis of his predicament is readily apparent: the way to federal custody, and out of state hands, was achieved by withholding information from the North Bergen police and presenting it to the F.B.I. I thus must reject the notion that the defendant at this time was not in full control of all his faculties. I also find unacceptable the claim that he "was flying."

 In the course of his experience, Lt. Villanova has seen a full range of symptoms of people under the influence of narcotics. They "ramble or drift off" in their speech, their speech is slurred, they are not composed, and they stagger. He observed none of these manifestations in the defendant.

 Lt. Villanova placed a call to the F.B.I. and went off duty at 7:30 a.m. During his tour of duty he did not discuss with the defendant the shooting in Newark or the stolen car, or any activities other than the bank holdup.

 Next to testify for the United States was Special Agent Francis Keogh of the F.B.I. He and two other agents arrived at the Harrison police station at 10:30 a.m. on June 7, 1973 in response to a call from someone there. They met a Captain Saporito who brought the defendant into a room in the station at about 10:35 a.m.

 Mr. Keogh and the other agents identified themselves to the defendant as special agents of the F.B.I., who responded that he had talked to agents before in other matters. Indeed, he mentioned the name of the agent he had spoken to on one such occasion, a name Mr. Keogh recognized. *fn6"

 The defendant told Mr. Keogh that he had had some difficulty the evening before, was faced with resultant local charges; and now preferred that he be held in federal rather than state custody. He offered information about a bank robbery, but conditioned this offer upon his getting an F.B.I. guarantee that he would be placed in federal custody. He had, he said, been in both federal and state custody previously and preferred federal custody because the jails were better. Moreover, in view of the fight and the shooting he had been in, if he went to a State prison facility, his victim might have friends there who would take reprisal against him. *fn7"

 Mr. Keogh refused to make any promise or give the demanded guarantee; but said that he would speak to local authorities and would do his best to have the defendant placed in federal custody. This is of course what later happened.

 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. *fn8"

 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. *fn9" 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. *fn10" 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 ...


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