The opinion of the court was delivered by: KEECH
Trial by jury having been waived, the court has for determination the guilt or innocence of the defendants, Simpson, Chambers, and Smyth, all young members of the Air Force, who are charged with robbing Joseph J. Costantino, an employee of the Federal Bureau of Investigation, on Mississippi Avenue, S.E., shortly after midnight on December 27, 1957, when he was en route home from his employment.
There is no challenge of the fact that the complainant was yoked and robbed. Indeed, each of the defendants here on trial has voluntarily admitted the robbery, and their codefendant, Landini, has pleaded guilty in another federal district.
Mr. Costantino testified that shortly prior to the robbery, while he was walking alone on Wheeler Road, he saw approximately three men coming toward him on the opposite side of the street. After he turned on Mississippi Avenue some one yoked him from behind, while another person removed his wallet from his rear pocket. One of the assailants told him they wanted his wallet and not to make trouble, saying, 'Don't try anything foolish. I have something here that will fix you good.' A taxicab approached, complainant tried to stop it, at that moment the robbers ran back toward Wheeler Road, and he lost sight of them in traffic. Inasmuch as both of the robbers approached him from the rear, complainant had a brief view of only one of them. To the best of his ability he gave the police a description of this man, which did not fit any of the defendants here on trial.
At no time was he able to identify Simpson, Chambers, or Smyth as one of the persons who robbed him. Some time thereafter the complainant received certain information as to who might have been involved in the robbery, which he passed on to the F.B.I
On February 11, 1958, Special Agent Buscher of the F.B.I. went to Bolling Air Force Base, which is near the scene of the robbery, and there interviewed two men. One related that he had heard an airman, Landini, say that shortly after Christmas he had robbed a man on Wheeler Road of over $ 100 and name two others who participated in the robbery, the defendants Chambers and Simpson. Another airman gave Agent Buscher essentially the same story as the first, but was able to recall the name of only Landini, although he knew by sight the other two mentioned by Landini, and also knew their positions at the Base.
Agent Buscher then contacted Detective Xander of the Metropolitan Police Department. Detective Xander, accompanied by two other police officers, met Agent Buscher at about 2 p.m. of the same day at the administrative office of the Provost Marshal at Bolling Air Force Base. Agent Buscher gave Detective Xander the names of the two persons he had interviewed and their story concerning the robbery, including the names of Landini and all three of the defendants here on trial, Simpson, Chambers, and Smyth, as being implicated in the robbery. Thereafter Detective Xander requested of and was given permission by the Provost Marshal to talk with the defendants.
Sergeant Adams, an air policeman, was sent to bring each of the defendants to the Provost Marshal's office in an air police vehicle. He was not armed, did not place any of the defendants under arrest, and, in fact, did not know why their presence was required by the Provost Marshal.
Landini was no longer at the Air Base and, as stated before, he has pleaded guilty in another jurisdiction.
The defendants, Simpson, Chambers, and Smyth, were brought in one by one. During all of the interviews, there was present as an observer for the Air Force, a Mr. Matthews, a Special Agent of the Office of Special Investigation of the Air Force, a military man who performed his duties in plain clothes. When each of the defendants was brought in, Major Hebert, the Provost Marshal, introduced the police officers and Mr. Matthews, advised the defendant that these were civilian authorities from off base who would like to talk with him about a case, and stated that Mr. Matthews would be present as a representative of the Air Force while the police talked to him. Major Hebert did not listen to the interviews but concerned himself with other duties. Mr. Matthews remained throughout the interviews, but took no part therein.
There is no evidence that anyone cautioned the defendants that they did not have to talk to the police, or advised them that anything they said might be used against them. Major Hebert testified that there was no occasion for him so to advise the defendants and that it was not his responsibility. Mr. Matthews testified that he did not do so, as he was ordered to be present at the interview merely as an observer for the Air Force.
The defendant Simpson was interviewed first, starting at about 3 p.m. Detective Xander testified that, after Major Hebert had introduced him, he told Simpson that he was there to investigate a robbery, that he had certain information and wanted to question Simpson regarding the case. At the beginning Simpson disclaimed any knowledge of the robbery, but a minute or two later he told Detective Xander that about 11 p.m. on December 26th, while in his room with Chambers, Smyth, and Landini, he had jokingly said, 'Let's go out and yoke somebody.' Someone said, 'Let's go,' and a few minutes later the four of them left the barracks and started walking. Simpson said he did not know the names of the streets, but they might have been on Wheeler Road. After they had walked some distance from the base, Chambers said, 'There is a man over there.' They observed the complainant walking north on Wheeler Road and then turn on Mississippi Avenue. Landini and Simpson ran after complainant. Landini grabbed complainant around his neck, forcing him to the ground, while Simpson went to the front of complainant and demanded his money. When complainant made no reply, Simpson started searching and found his wallet in his trousers pocket. After Simpson got the money, Landini released his hold on the complainant and told him to continue walking and to make no outcry, that 'he had something that would take care of him.' Chambers and Smyth did not come up on the immediate scene, but stood back at a distance. A cab came by about that time and the four of them ran. They went through a wooded area and came out somewhere near a school building. There they stopped while Simpson counted the money and found $ 103. They then agreed to separate. Simpson and Chambers went in one direction and Smyth and Landini in another. Later they met in a room at the barracks and Simpson divided the money, keeping $ 26, giving Chambers and Smyth each $ 25, and $ 27 to Landini, who claimed he did all the 'dirty work.' The billfold was thrown into a sewer somewhere near Bolling Air Force Base by Landini. At about 3:30 p.m. Simpson was escorted by an air policeman back to his quarters to change to civilian clothes and was then returned to the Provost Marshal's office.
The defendant Chambers was next interviewed by Detective Xander, in the presence of the same persons, beginning at approximately 3:45 p.m. Chambers readily admitted his part in the robbery. His story of the conversation in the barracks preceding the robbery was similar to that of Simpson, as was his story of the offense. He saw Simpson and Landini run toward the complainant, saw Landini grab the complainant, forcing him to the ground, and saw Simpson bending over him. He said he and Smyth were standing about forty or fifty feet away from this scene. When asked if he were serving as a look-out, he hesitated and said, 'Well, not exactly,' but added, 'You might say that we were looking for someone that might come along.' He corroborated that the four of them ran when a cab came by, and that he had received $ 25 as his share when they met later. Detective Xander finished talking to Chambers about 4:05 p.m.
Within fifteen or twenty minutes later Smyth was brought in. After Major Hebert had identified the police officers and Mr. Matthews, Detective Xander told Smyth he was there as a Metropolitan Police officer to investigate a robbery which had occurred some time before on Mississippi Avenue and that he had information that Smyth was involved. Smyth at first denied the yoking, but after he was confronted with the information they had already received, Smyth, too, admitted his participation in the offense. He admitted he had been with the others when Simpson said, 'Let's go out and yoke somebody;' that they had gone walking; that he heard Chambers say, 'There is a man over there:' that he saw Simpson and Landini run after the man, saw Landini grab him, forcing him down, and saw Simpson bending over him. Smyth also admitted that he had received $ 25 as his share. He said he was not at the immediate scene of the offense and had stood back a little, but admitted that he was looking for anyone who might come by.
After Detective Xander had talked to all three of the defendants, he inquired of the Provost Marshal whether the men could be released to him or whether he would have to obtain warrants. After consultation with a legal officer, Major Hebert informed Detective Xander that the defendants could be turned over to him upon his signing receipts for them. This was done, and the three defendants were at that time placed under arrest by Detective Xander. The defendants were then taken to No. 11 Precinct, about ten minutes from the Base, and there booked for investigation at approximately 5:30 p.m. Detective Xander testified that they were not booked on a robbery charge until about an hour and fifteen minutes later, after they had been confronted by the complainant Costantino, who came to the Precinct at about 6:45 p.m. The defendants were arraigned before the United States Commissioner at about 10 a.m. the next morning.
The evidence as to the defendants' oral admissions and confessions was received subject to a motion to suppress. The defendants were permitted to testify solely for the purpose of the motion to suppress. All evidence of incriminating statements by any of the defendants ...