Circuit Affirms Bank Robbery Conviction From the Wild Western District
In United States v. Peeples, the Second Circuit (Walker, Cabranes and Sack) affirmed the conviction of Joseph W. Peeples, III in the Western District of New York on bank robbery charges. Peeples argued that the district court should have dismissed his charges based on violations of Federal Rules of Criminal Procedure 3 and 5(c)(2), and that it erroneously admitted bank employee testimony and certain physical evidence at trial. The Circuit rejected the challenge on all fronts.
In January 2017, Peeples robbed a Chase Bank in Rochester, New York, absconding with over $100,000. He then fled, aiming for Mexico as some bank robbers of movie fame have tried. See, e.g., “It’s A Mad, Mad, Mad, Mad World” (1963) (depicting Spencer Tracy as Captain Culpeper, who took the proceeds of a bank robbery and headed toward Mexico). But unlike Steve McQueen, who robbed a San Antonio bank in the 1972 action movie “The Getaway” and crossed the border at El Paso, Peeples did not make it to Mexico. Indeed, Peeples barely made it to downstate New York—unfortunately for Peeples, not far enough to escape either the winter cold or federal law enforcement. After a series of odd encounters that the Court describes in novelistic detail (“Who ratted me out, was it you?”), Peeples was apprehended at a hotel in Binghamton, having left a trail of cash, surveillance video and other evidence in his wake.
Peeples confessed to a federal agent, and, the day after his arrest, a magistrate judge in the Northern District of New York approved a warrant to search his hotel room. Later that day, he was transported back to Rochester, where he appeared before a magistrate judge in the Western District of New York. At trial, Peeples represented himself pro se; the jury swiftly rendered a guilty verdict on counts of bank robbery, entering a bank with the intent to commit larceny, and bank larceny.
On appeal, represented by counsel, Peeples argued that the charges should have been dismissed because his transfer from the Northern District, without an appearance before a magistrate judge there, to the Western District violated the prompt-presentment requirement under Rule 5(c)(2). The government did not refute Peeples’ argument that his appearance in the Western District the day after his arrest in the Northern District technically violated the rule—the rule is very clear that this is not permitted. However, it noted that at trial, it had agreed not to introduce his post-arrest statements into evidence. The Circuit concluded that this remedy was sufficient in light of the established precedent that “the remedy for such a violation is the exclusion of evidence, not dismissal of a criminal case.” Since the purpose of Rule 5(c)(2) is to prevent the government from delaying arraignment “to obtain incriminating evidence or elicit a confession,” the sanction of exclusion was adequate to deter future misconduct.
The Circuit further concluded that dismissal of the charges was not warranted even though Peeples’ post-arrest statement was included in the affidavits supporting the search warrant and criminal complaint. There was no evidence that the government had violated Rule 5(c)(2) in order to elicit the confession, and both the warrant and complaint rested on “ample untainted evidence” apart from his confession—in the form of extensive witness testimony, surveillance video, and the trail of physical evidence Peeples left behind on his journey from Rochester to Binghamton.
Peeples next pointed to the magistrate judge’s failure to sign the jurat, or certificate of attestation, on the last page of an FBI agent’s affidavit attached to the criminal complaint. As a result, he contended, the affidavit was not made under oath as required by Rule 3. The Circuit rejected this challenge, too, reasoning that Rule 3 requires that the complaint be made under oath, and here both the magistrate judge and the special agent had signed the actual complaint.
Finally, Peeples attacked two trial rulings: the admission of identification testimony by Chase employees, and the admission of evidence seized from his hotel room. Peeples had requested that he be seated elsewhere in the courtroom during the bank employee testimony, on the ground that in-court identification is inherently suggestible; the district court denied the request. The Circuit concluded that the identifications were not irreparably tainted by suggestibility, since both witnesses noted their confidence in the identification and one identified Peeples by his voice in addition to his appearance. Plus, any error would be harmless in light of the overwhelming evidence against him. As for Peeples’ assertion that a warrantless search of his hotel room occurred before execution of the warrant, there was no such evidence in the record.
Although Peeples’ failed getaway plan and his decision to go pro se at trial are unusual, the Circuit’s reasoning in rejecting his arguments on appeal is unsurprising. Peeples is surely right that most witnesses know where the defendant will be seated at trial and this fact does make in-court identification easier for the witness (although in-court identifications can and do go awry from time to time). The Circuit even noted that this “request was arguably a reasonable one.” So far, so good. However, the Court noted that in United States v. Brown, 699 F.2d 585, 594 (2d Cir. 1983), the panel held that a defendant facing a suggestive in-court identification has the right “to move for a line-up order to assure that the identification witness will first view the suspect with others of like description rather than in the courtroom sitting alone at the defense table.” Peeples made no such motion here.
It is understandable that a pro se litigant like Peeples would not be familiar with this procedure. The adage that “a person who represents himself has a fool for a client” is often attributed to President Lincoln, perhaps the most successful practicing lawyer to become president. To some extent, this case is consistent with President Lincoln’s observation. To be sure, there is a constitutional right to proceed pro se, and courts must be cautious before depriving a defendant of this right. Driven by an understandable desire for control over one’s fate, and perhaps frustrated with the challenges of being a defendant in a criminal case, a small number of defendants will avail themselves of this right, even if the sounder course would be to accept the representation of counsel. This case may be a cautionary tale for future defendants who might seek to exercise the right of self-representation.
By Sofie Syed and Harry Sandick.