APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Seitz, Chief Judge, Van Dusen and Gibbons, Circuit Judges. Van Dusen, Circuit Judge, dissenting.
This is an appeal by the United States pursuant to 18 U.S.C § 3731 from an order of the district court granting the motion of defendant, Lloyd Eugene Crook, to quash an incriminating statement which he gave to agents of the Federal Bureau of Investigation on January 17, 1973. Crook is before the district court on an indictment charging robbery of a Wyncote, Pennsylvania bank, and the challenged statement admitted that he did so. The motion to suppress asserted (1) that the F.B.I. should have called Crook's attorney before they interrogated him, and (2) that his mental condition was such on January 17, 1973 that he could not appreciate the significance of the Miranda warnings given him and thus his waiver of Miranda rights was not voluntary. The district court held a hearing in which psychiatric evidence as to Crook's mental condition was presented, and concluded:
"If the mental capacity of the defendant was the sole issue in this case I would hold that his mental capacity was such that there was no violation of his rights in obtaining the statement because of any mental condition arising out of any mental illness that the defendant may have had at that time, or of any mental incapacity, and I would hold, if that were the sole issue in this case, that the Government has met its burden of proof that the statement was validly obtained." Appendix at 90.
The court held, however, that the statement should be suppressed because the interrogation was in violation of Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964). That holding is inconsistent with decisions of the Supreme Court and this court, and we reverse.
On January 17, 1973, Crook was arrested in Peoria, Illinois pursuant to a warrant charging him with robbery of the Wyncote, Pennsylvania bank on December 22, 1970. He was taken to the Peoria F.B.I. office where a standard written advice of rights form was given to him. He read and signed this form which was witnessed by two F.B.I. agents. The form was not read to him. It contains all the warnings required by Miranda, and above the signature line appears the language:
"I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me."
Appendix at 52. (emphasis added).
Crook was then asked if he committed the Wyncote robbery and he denied it. One of the agents told him that his sister had identified him as the person in the Wyncote bank surveillance photographs. He then responded "Well if you say its me, its me." Crook then answered specific questions which were reduced to a narrative confession which he signed.
At the time of the interrogation Crook was awaiting sentence on an attempted bank robbery charge in Peoria, Illinois. Arrested on that charge on December 18, 1972, he had later been arraigned and Randall Moon, a Peoria attorney, had been appointed to represent him. Through Mr. Moon he had tendered a guilty plea on the Peoria charge on the basis of a recommendation by the government of a three-year probationary sentence. On January 17, 1973 the Peoria judge had not yet finalized this plea bargain by accepting the guilty plea. One of the F.B.I. agents who arrested Crook on the Wyncote charge was the case agent on the Peoria case and was aware that Mr. Moon represented him in that case. That agent was present during the January 17, 1973 interrogation. Following the execution of the signed statement, an attempt was made to call Mr. Moon, but he was not in his office. On the basis of the foregoing facts, which are essentially undisputed, the court ruled:
"Clearly in this case the counsel representing the defendant in the Peoria bank robbery had an interest to protect in that pending proceeding. I would point out, however, that there is no contention and no evidence that the defendant was actively prevented from contacting Mr. Moon, or that the statement was ...