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Defendant-appellant Michael Spencer appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York (DiCarlo, J.) after a jury found him guilty of conspiracy to commit armed robbery of an Insured Postal Credit Union, in violation of 18 U.S.C. § 371, and armed robbery of an Insured Postal Credit Union, in violation of 18 U.S.C. § 2 and § 2113(a) and (d). The district court (McKenna, J.) (to whom Spencer's case was originally assigned) previously had granted defendant's motion to suppress statements he made to FBI agents, finding that defendant made an ambiguous request for counsel at the time of his questioning by the agents. The district court held that the government had failed to meet its burden of proving that defendant initiated interrogation following the request. Defendant's motion to suppress testimony of the car service driver who drove defendant to the robbery was denied, despite defendant's argument that the testimony was "fruit of the poisonous 816*816 tree" derived from defendant's previously suppressed statements. Relying on Supreme Court decisions in Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974) and Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990), the judge reasoned that the violations that occurred during defendant's questioning were not of constitutional magnitude (since the continued questioning did not involve any coercion), but rather violated only procedural safeguards. Accordingly, the third-party witness' testimony was held admissible even though the witness' identity was derived from defendant's statements.

At sentencing, the district court accepted the recommendation made in the presentence report and classified defendant as a "Career Offender" pursuant to section 4B1.1 of the United States Sentencing Guidelines (the "Guidelines"), based upon defendant's prior convictions for attempted robbery in the third degree and robbery in the second degree. On appeal, defendant argues that the failure to suppress the derivative third-party witness' testimony violated his constitutional rights under the Fifth and Sixth Amendments. He also challenges the district court's classification of him as a "Career Offender" under the Guidelines.

For the reasons stated below, we vacate the conviction and remand the case to the district court to determine, as required by Harvey, whether defendant's waiver, if any, of his right to counsel was knowing and voluntary. The district court should also consider the government's alternative theories for admitting the testimony, namely the "attenuation" and "inevitable discovery" doctrines, if it finds defendant did not knowingly and voluntarily waive. We affirm the district court's decision to classify defendant as a "Career Offender" under the Guidelines.


955 F.2d 814 (1992)

UNITED STATES of America, Appellee,


Michael SPENCER, Defendant-Appellant.

No. 243, Docket 91-1185.

United States Court of Appeals, Second Circuit.

Argued October 10, 1991.

Decided January 28, 1992.

New York Law School location:, File #1334, Box # 128