239 F.2d 916 | D.C. Cir. | 1956
Lead Opinion
announced the judgment and division of the court as follows:
This conviction for second degree murder is reversed and the case is remanded to the District Court for a new trial on the ground that the trial court erred in refusing to exclude police testimony concerning appellant’s alleged oral confessions that she stabbed her husband. Chief Judge' EDGERTON and Circuit Judges PRETTYMAN, BAZE-LON, FAHY, ' WASHINGTON and DANAHER vote for reversal on that ground. Circuit Judges WILBUR K. MILLER, BASTIAN and BURGER vote for affirmance; Judge BAZELON files an opinion in which Judge EDGERTON concurs. Judge DANAHER files an opinion in which Judge PRETTYMAN concurs. Judges FAHY and WASHINGTON file a separate statement. Judge WILBUR K. MILLER files a dissenting opinion in which Judges BAS-TIAN and BURGER'concur.
BAZELON, Circuit Judge, with whom EDGERTON, Chief Judge, concurs.
The issue is whether the rule adopted by the Supreme Court in McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, requires, exclu
Rule 5(a) .of the Federal Rules of Criminal Procedure directs that arrested persons must be taken “without unnecessary delay before * * * [an] officer empowered to commit persons * *
Thereafter, in United States v. Mitchell, the Court said, “Inexcusable detention for the purpose of illegally extracting evidence from an accused, and the successful extraction of such inculpatory statements by continuous questioning for many hours under psychological pressure, were the decisive features in the McNabb case * * 1944, 322 U.S. 65, 67, 64 S.Ct. 896, 897, 88 L.Ed. 1140. Mr. Justice Reed, concurring in the result, considered this “a desirable modification of the McNabb case.” Id., 322 U.S. at page 71, 64 S.Ct. at page 899. The confession was held admissible, however, on the sole ground that there had been “no disclosure induced by illegal detention * * The accused had confessed “within a few minutes of his arrival at the police station,” and his subsequent illegal detention for eight days did not “retroactively change the circumstances under which he made the disclosures.” Id., 322 U.S. at pages 69, 70, 64 S.Ct. at page 898.
Four years later, the Court decided Upshaw v. United States, 1948, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100. Up-shaw had confessed after being held for interrogation without arraignment for more than 30 hours, and his confession had been admitted at the trial. This court, despite the Government’s confession of error, affirmed the conviction on the ground that there had been no coercion, physical or psychological, during
In United States v. Carignan, 1951, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48, the Court adhered to the Upshaw statement of the McNabb rule. Id., 342 U.S. at page 43, 72 S.Ct. at page 101. It held, however, that a murder confession made by one who had been properly arraigned on an assault charge, but not for murder, was not excludable. The Court reasoned that since Carignan had been initially arraigned in conformity with Rule 5(a) “this case falls outside the reason for the rule, i. e., to abolish unlawful detention. Süch detention,” the Court said, “was thought to give opportunity for improper pressure by police before the accused had the benefit of the statement by the commissioner. Rule 5(b) [F.R. Crim.P., citing Upshaw and McNabb]. Carignan had received that information at his commitment for the assault.” Id., 342 U.S. at pages 44-45, 72 S.Ct. at page 101. Thus, Carignan implies that the McNabb rule applies to all confessions made in response to interrogation while the accused is held in violation of Rule 5(a), and hence before he has received the benefits of Rule 5(b).
In two recent state confession cases, the Supreme Court distinguished the coerced confession rule, applicable in state as well as federal courts, from the Mc-Nabb rule which applies only in the federal courts. In Brown v. Allen, the Court declared:
“Under the leadership of this Court a rule has been adopted' for federal courts, that denies admission to confessions obtained before prompt arraignment notwithstanding their voluntary character.*919 * * * This experiment has been made in an attempt to abolish the opportunities for coercion which prolonged detention without a hearing is said to enhance.”5
In Stein v. People of State of New York, the Court likewise indicated that no explicit showing of coercion is required under the McNabb rule. The Court said:
“Petitioners confuse the more rigid rule of exclusion which, in the exercise of our supervisory power, we have promulgated for federal courts with the more limited requirements of the Fourteenth Amendment. This, we have held, did not impose rules of evidence on state courts which bind them to exclude a confession because, without coercion, it was obtained while a prisoner was uncounseled and illegally detained.”6
Prior to the Supreme Court’s reversal of our decision in Upshaw, the prevailing view in this jurisdiction had been that relentless questioning or other “aggravating circumstances” were required in order to invalidate a confession made during an illegal detention.
“ * * * we must consider it to be a settled principle that, when arresting officers unnecessarily delay taking a prisoner before a committing magistrate, any confession made to them during that delay is inadmissible; and that is true even though the confession was not induced by the illegal detention nor by any form of coercion, but was voluntarily given.”8
This dictum was repudiated three years later by other dictum in Pierce v. United States.
Since the views expressed in the Pierce and Allen cases were dicta, we are not bound by them in deciding this case. We think, with due deference, that the McNabb rule is not limited to the facts of the McNabb case. The holding in Upshaw and language in the Brown and Stein cases, decided by the Supreme Court subsequent to Pierce and Allen, indicate the contrary. Under Brown and Stein, the McNabb rule operates as a sanction against police irregularities that create an opportunity for third degree methods by compelling an accused to face his questioners incommunicado, uncounseled, and uninformed of his rights. A confession obtained through secret interrogation during illegal detention is not admissible in evidence, whether or not, as in McNabb, the questioning is not merely secret but is coercive in other respects as well.
We turn now to determine whether the confession in the present case was made in circumstances which bring it within McNabb.
Appellant returned from her employ-meht as a waitress to the apartment where she lived with her husband, at 2 :- 20 a. m., Sunday, October 24, 1954. At about 6:15 a. m., she reported to police that her husband had been stabbed while asleep with her on the sofa. Police Sergeant Deenihan described what he saw when he arrived at the apartment shortly after the report. Then he testified that appellant told him that “someone came in, and she didn’t know who it was, and that he must have stabbed her husband.”
At that point the court granted defense counsel’s request for a hearing outside the presence of the jury to determine whether, as the court put it, there had been an “overlong detention.” The police testimony was that, in a middle-of-the-night interrogation of appellant 16% to 19% hours after her arrest, she told the police she had stabbed her husband after they had fallen asleep together on the sofa.
At the hearing it was established that appellant was placed under arrest at 7:30 a. m., Sunday, October 24, and taken to the Homicide office. From about 8:30 to 9:00 a. m., Sergeant Deenihan questioned her. From about 9:00 to 10:30 a. m., he gave her a lie detector test to which she consented. From about 10:30 to 11:00 a. m., she was at the Identification Bureau. From about 11:00 to 11:-30 or 11:45 a. m., the Sergeant interviewed her at the Homicide office. From about 12:00 noon to 2:00 p. m., he gave her another lie detector test. From about 2:00 p. m. to “quarter of 3, 3 o’clock” he
Upon completion of the Government’s ■evidence at the hearing, the court observed that the period between appellant’s ■arrest and oral confession was “certainly dealing with a long period of time.” But the court, the prosecutor and defense counsel thought that illegality of detention was not the sole prerequisite to ■exclusion of the confession. As the prosecutor expressed it, “a showing * * * of a patent denial of due process by coercion” was required in addition. Defense counsel argued that, although illegal detention in itself is insufficient, sufficient psychological pressure had been shown by the Government’s own witnesses to render the confession inadmissible as a matter of law. He subscribed to the interpretation of McNabb expressed in Mr. Justice Reed’s dissent in Upshaw v. United States, 1948, 335 U.S. 410, 414, 69 S.Ct. 172, 93 L.Ed. 100, namely, that “pressure short of coercion but beyond mere detention makes confessions inadmissible.” Id., 335 U.S. at page 429, 69 S.Ct. at page 179.
On the question of whether the application of the McNabb rule is to be decided by judge or jury, the trial court disregarded McNabb itself
The case was submitted to the jury on Mr. Justice Reed’s theory that “pressure short of coercion but beyond mere de
The submission of the McNabb question to the jury was clearly erroneous. “It was for the trial judge to determine in accordance with the procedure outlined in McNabb v. United States, whether Rule 5 had been satisfied in accordance with our standards.” Watson v. United States, supra, note 7, 234 F.2d at page 48. And, on the facts of this case, that determination should have been to reject the confession testimony. The confession was secured between midnight and 3:00 a. m., 16% to 19% hours after arrest and before arraignment, after appellant had been subjected to prolonged questioning at various intervals. We would hold that in these circumstances she was not taken before a committing magistrate “without unnecessary delay” within the meaning of Rule 5(a),
The Government suggests that the delay in arraignment was necessary because the police are not required by Rule 5(a) to take appellant before a committing officer on Sunday. We think this view is without merit. So, apparently, did the trial court.
We think the issue of whether there has been an “unnecessary delay” in arraignment must be resolved, in every case, by deciding whether there have been reasonable and bona fide efforts
FAHY and WASHINGTON, Circuit Judges.
We agree with Judge BAZELON’S analysis, in which Judge EDGERTON concurs, of the requirements of the Mc-Nabb rule and concur in reversal of the judgment of conviction on the ground that those requirements have not here been met, as well as on the ground that the evidence showed that the confession was involuntary.
. “An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States. When a person arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith.”
. “The commissioner shall inform the defendant of the complaint against him, of his right to retain counsel and of his right to have a preliminary examination. He shall also inform the defendant that he is not required to make a statement and that any statement made by him may be used against him. The commissioner shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant to bail as provided in these rules.”
. 1948, 83 U.S.App.D.C. 207, 168 F.2d 167.
. Detained without arraignment, “the accused is under the exclusive control of the police * * Mr. Justice Douglas, concurring in Carignan, 342 U.S. at page 46, 72 S.Ct. at page 102. The obvious benefit of Rule 5 is that the committing magistrate removes the accused from police control to the control of the jail warden, beyond the peril of secret interrogation and pressure. If delay in commitment is unavoidable, the danger inherent in continued police control may to some extent be mitigated by the police advising the accused of his rights and affording him the opportunity to consult counsel. See my dissenting opinion in Green v. United States, 1956, 98 U.S.App.D.C. 413, 236 F.2d 708.
. 1953, 344 U.S. 443, 475, 73 S.Ct. 397, 417, 97 L.Ed. 469, emphasis supplied.
. 1953, 346 U.S. 156, 187-88, 73 S.Ct. 1077, 1094, 97 L.Ed. 1522, emphasis supplied.
. In Mitchell v. United States, 1944, 78 U.S.App.D.C. 1.71, 138 E.2d 426, the first post-MeNabb case to come before this court, we took the position that a confession was inadmissible whenever an arraignment statute was violated, whether the confession was “voluntary or involuntary.”
Following the Mitchell reversal by the Supreme Court, United States v. Mitchell, 1944, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140, in Sykes v. United States, 1944, 79 U.S.App.D.C. 97, 143 F.2d 140, we held that a “voluntary confession obtained during an illegal detention” was admissible “provided it was not induced by the illegal detention.” We took a seemingly contrary position in Akowskey v. United States, 1946, 81 U.S.App.D.C. 353, 354, 158 F.2d 649, 650, holding simply that since the detention was illegal, “the incriminating statements of the accused were inadmissible * * *.” Subsequently, however, in Boone v. United States, 1947, 82 U.S.App.D.C. 359, 164 F.2d 102, we reverted to the view that an illegal detention did not nullify a voluntary confession uttered during its continuance. We read McNabb and Mitchell as holding that a confession was inadmissible only if induced by the illegal detention, and distinguished the Akowskey case on the ground that there the confession had been the result of relentless questioning and it was that factor, not the illegal detention per se, that had nullified the confession. In Wheeler v. United States, 1947, 82 U.S. App.D.C. 363, 165 F.2d 225, certiorari denied 1948, 333 U.S. 829, 68 S.Ct. 448, 92 L.Ed. 1115; and Alderman v. United States, 1947, 83 U.S.App.D.C. 48, 165 F.2d 622, like Boone decided in 1947, we adhered to the view that a confession is not rendered inadmissible unless induced by the illegal detention.
Recently in Watson v. United States, 1956, 98 U.S.App.D.C. 221, 234 F.2d 42, 47-48, we reiterated the requirement that the detention must produce the disclosure, but pointed out that “interrogations * * * bad their effect. They became part of the whole net * * * enmeshing [the prisoner] in duress, however subtly applied.”
. 84 U.S.App.D.O. 361, 364, 174 F.2d 499, 502, certiorari denied 1949, 337 U.S. 945, 69 S.Ct. 1502, 93 L.Ed. 1748.
. 1952, 91 U.S.App.D.C. 19, 197 F.2d 189. In both Garner and Pierce the confessions were held admissible and the con
. 91 U.S.App.D.C. at page 21, 197 F.2d at page 192.
. 91 U.S.App.D.C. 197, 202, 202 F.2d 329, 334, certiorari'denied, 1952, 344 U.S. 869, 73 S.Ct. 112, 97 L.Ed. 674. Allen’s confession came in response to questioning which he had invited by going to the police voluntarily “to talk about the crime.” In both the Pierce and Allen cases, the writer of this opinion, without endorsing the court’s interpretation of Upshaw, concurred in the result on the ground that the confessions were not made after a period of “unnecessary delay.” ' '
. Even while expressing reliance on Pierce and Allen, we seem to have returned to the straightforward rule which employs as the standard simply whether the confession was obtained through secret interrogation of an illegally detained prisoner. To say, as we did in Watson, supra, note 7, that the interrogations were “subtly applied” duress is not far from saying that a confession obtained through secret interrogation during illegal detention is inadmissible.
. ■ But, the prosecutor added in his proffer, “almost immediately' after that, she said that she doesn’t remember stabbing him, and believed that he stabbed himself,” and then “her admissions and denials continued for the next 30 minutes.”
. “ * * * it is tlie duty of the trial court to entertain a motion for the exclusion of evidence [alleged to have been obtained in violation of the commitment procedure] and to hold a hearing * * to determine whether such motion should be granted or denied.” 318 U.S. at page 346, 63 S.Ct. at page 616, citing cases involving motions which must be resolved by the court to suppress and return evidence.
So far as we are aware, the question of exclusion under the McNabb rule has been decided by the court in every reported case wherein the rule has been asserted.
. “Obviously there is a wide range of discretion as to how much psychological pressure is necessary. * * * Under this interpretation of McNabb * * * as in coerced confessions, it should be left to a jury to decide whether there •was enough evidence of pressure where the admitted facts do not show improper pressure as a matter of law.” 335 U.S. at page 429, 69 S.Ct. at page 180. But the Supreme Court, in Upshaw, adopted a very different interpretation of Mc-Nabb.
. Although we do not reach the question of the coercive effect upon appellant of the detention and its attendant circumstances, it is clear from Sergeant Deeni-han’s testimony that appellant was under severe emotional stress during the period of detention. When he questioned her before giving her a lie detector test, he said she could not remember what happened in connection with the stabbing; that she was “just going through a change in life” and, in “the last several years,” “there are times that I go to work and I don’t even remember working or coming home.” Based upon special training he had had in giving lie detector tests, he forecast that the test “wouldn’t work” because of appellant’s physical changes due to menopause and because
. “ * * * what constitutes ‘unnecessary delay,’ i. e., reasonable time within which the prisoner should be brought before a committing magistrate, must be determined in the light of all the facts and circumstances of the case.” Notes of Advisory Committee, Rule 5(a).
. [Asst.U.S.Atty.]: This was Sunday, Your Honor, and I don’t know of any Commissioner available on Sunday.
The Court: Yes, he is.
[Asst.U.S.Atty.]: He would have to be called at home.
The Court: Of course, I understand that. But he is available, and so are the Municipal Court Judges * * *.
. Ibid.
. This was the test applied in Pixley v. United States, 10 Cir., 1955, 220 F.2d 912, 913-914. There the court held there was no “unnecessary delay” in committing, on Monday morning, an appellant taken into custody Saturday morning, but only upon a finding that an effort was made “almost immediately” to seek a commissioner in another city, and that he was unavailable for the weekend. Though no effort was made to take appellant before a district judge in the other' city, or before some other
See also Haines v. United States, 9 Cir., 1951, 188 F.2d 540, certiorari denied 1951, 342 U.S. 888, 72 S.Ct. 172, 96 L.Ed. 666.
. Rule 5(a).
. 18 U.S.C. § 3041 (1951).
. See notes 4 and 20, supra.
Concurrence Opinion
(with whom Circuit Judge PRETTYMAN concurs) .
We agree that the conviction must be reversed, but for reasons which will be developed in this opinion.
We do not share the view expressed by Judge BAZELON that McNabb v. United States
As we read it, McNabb is based upon the premise that when there has been inexcusable detention for the purpose of illegally extracting evidence from an accused, coupled with the successful extraction of inculpatory disclosures as a result of continuous questioning for many hours under psychological pressure, the statements of the accused so produced shall not be received.
The Supreme Court has had repeated opportunities to say that its rule of evidence for federal courts means less, but it has declined to do so. Rather than automatically exclude all self implicating statements by an accused while in cus tody, the Court has said:
“By United States v. Mitchell, 322 U.S. 65, 70-71, [64 S.Ct. 896, 898, 88*924 L.Ed. 1140], this Court decided that the McNabb rule was not intended as a penalty or sanction for violation of R.S.D.C. § 397, a commitment statute. The same conclusion applies to Rule 5, Federal Rules of Criminal Procedure.”3
It is true that at one time, as when the Mitchell case
“But on appeal to the Supreme Court our view was rejected and the Supreme Court itself interpreted its language in the McNabb case wholly contrary to the position now taken by counsel for appellant in this case. In the Mitchell case the Supreme Court said, as it had said in the Mc-Nabb case, that inexcusable detention for the purpose of extracting evidence from the accused is both wrong and unlawful, but pointed out that while this is true, detention, standing alone, does not affect the admissibility of the confession except in a case in which it appears that the disclosure is induced by it. In short, that unlawful detention, without more, does not require rejection of a confession otherwise-admissible.”
After the Boone opinion had been written, we were again faced with the problem in Garner v. United States.
While there were yet other cases raising comparable questions, both here and’ in other circuits, many, perhaps most of' them, have been cited in Tillotson v. United States
The question was again presented in Allen v. United States.
“For the reasons stated in Pierce v. United States * * * we think the McNabb rule * * * is that illegal detention before presentment to a committing magistrate, standing alone and without more, does not invalidate a confession made during its contimiance, unless the detention produced the disclosure.”13 (Emphasis supplied.)
Again Judge BAZELON concurred in the result since he found there had been no unnecessary delay in arraignment.
The rule of the Pierce and Allen cases has since been followed by this court, and, in essence, by other circuits.
Some of our colleagues would strike down the Pierce and Allen cases. They read the McNabb case as commanding that result, not because of express language in the McNabb opinion, but by virtue of what someone says it says. Perhaps any such proposed test can be countered in like vein. For example, Mr. Justice Frankfurter said: “Inexcusable detention for the purpose of illegally extracting evidence from an accused, and the successful extraction of such incul-patory statements by continuous questioning for many hours under psychological pressure, were the decisive features in the McNabb case which led us to rule that a conviction on such evidence could not stand.”
It may prove of interest to note that in the McNabb opinion the Court had said of the accused, “They were not brought before a United States Commissioner or a judge”
“this circumstance is now out of the case and there is no substantial*926 evidence that the confessions were elicited by means of illegal procedure. As pointed out in the Me-Nabb case, supra, 318 U.S. [at] page 346, 63 S.Ct. [at] page 615, 87 L. Ed. 819, ‘The mere fact that a confession was made while in the custody of the police does not render it inadmissible.’ This quotation was repeated in United States v. Mitch■ell, 64 S.Ct. 896, 899. The Mitchell •opinion embodies a clarification of its MeNabb opinion.
“We think that the circumstances in the present setting do not compel the exclusion of confessions upon the ground that they were involuntary.”'21
’Thus the McNabbs were convicted, and •certiorari was denied.
Judge PRETTYMAN and I are satisfied that since the adoption of the Federal Rules of Criminal Procedure, the application of Rule 5 is to be governed by the Pierce and Allen cases. By applying, ■not disparaging, the rule to be deduced from Pierce and Allen, we have concluded that the conviction in this case must be reversed.
The record shows that the defense •voiced timely objection and moved to ex-elude the appellant’s allegedly inculpatory admissions. The trial judge properly conducted an extensive hearing out •of the presence of the jury. But it was the duty of the trial judge thereupon to ■determine preliminarily whether the motion to exclude should be granted or •denied,
We are of the view that upon the face of events, the motion to exclude the admissions should have been granted. The record develops the setting thus:
Appellant had worked as a waitress on a night shift. She came home from work at about two o’clock on a Sunday morning and, according to her testimony, did some household chores, going to bed between three-thirty and four o’clock in the morning. She was alone in the apartment with her husband. At about six o’clock she aroused a neighbor with word that her husband had been stabbed. From then on she was in the custody of the police. What sleep she had had between four o’clock and six o’clock is a guess (she said she had none), but it could not have been more than two hours. She was questioned at intervals all day Sunday. She was twice given polygraph tests, each test lasting about an hour or an hour and a half, both being “inconclusive,” due to her distraught condition. She had no food, having declined lunch. Finally at about eight o’clock: Sunday evening she was taken to a room at the Women’s Bureau and went to bed. Sometime after one o’clock Monday morning she was aroused and taken downstairs to a witness room or conference room in the Women’s Bureau, and the questioning by police officers began. This questioning lasted about three-quarters of an hour, or possibly an hour. At this interview she is said to have confessed orally.
At no time was she warned that anything she said would be used against her, and at no time was she advised of her right to counsel. She at no time saw any of her family or friends.
At all times after early Sunday morning she was obviously the prime suspect in the case, having been alone in the apartment with her husband, having given the alarm, and having made conflict
If we assume this woman had worked eight hours on the Saturday night shift and had been awake an hour prior to going to work, she had had no more than two hours’ sleep in twenty-seven hours when she went to bed at the Women’s Bureau Sunday evening.
It counters our experience and the teaching of the cases, to believe that the police can question such a person, distraught from the circumstances, without food, without rest, off and on from seven o’clock in the morning to eight o’clock at night, and then wake her in the middle of the night, take her out of bed to a conference room, question her again, without warning and without advice as to counsel, and then obtain inculpatory admissions, free from taint. There was no reason for not warning her or advising her of her right to counsel. There was in this case no reason for not booking her, either on probable cause for suspicion of murder or as a material witness.
. 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L. Ed. 819.
. 1955, 350 U.S. 949, 76 S.Ct. 324.
. United States v. Carignan, 1951, 342 U.S. 36, 42, 72 S.Ct. 97, 100, 96 L.Ed. 48.
. Mitchell v. United States, 1944, 78 U.S. App.D.C. 171, 138 E.2d 426, reversed 1944, 322 U.S. 65, 64 S.Ct. 896.
. 1947, 82 U.S.App.D.C. 359, 360, 164 F. 2d 102, 103, citing United States v. Mitchell, 1944, 322 U.S. 65, 70, 64 S.Ct. 896.
. 1949, 84 U.S.App.D.C. 361, 363-364, 174 F.2d 499, 501-502, certiorari denied 1949, 337 U.S. 945, 69 S.Ct. 1502, 93 L. Ed. 1748.
. The notes in the files of the Supreme Court will disclose that the committee explored the possibilities of a rule requiring that an arraignment be immediate or that the accused be presented “forthwith” to a committing magistrate. These views were rejected, however, and as promulgated by the Supreme Court itself as of December 26, 1944, Rule 5(a) provides that the accused is to be taken before the nearest committing magistrate-“without unnecessary delay.”
. Certiorari was denied 1949, 337 U.S. 945, 69 S.Ct. 1502, 93 L.Ed. 1748.
. 1956, 97 U.S .App.D.C. 402, 231 F.2d 736, certiorari denied 1956, 351 U.S. 989, 76-S.Ct. 1055.
. 1956, 98 U.S.App.D.C. 221, 234 F.2d. 42.
. 1952, 91 U.S.App.D.C. 19, 22, 197 F.2d 189, 192, certiorari denied 1952,. 344 U.S. 846, 73 S.Ct. 62, 97 L.Ed. 058..
. 1952, 91 U.S.App.D.C. 197, 202 E.2d 329, 334, certiorari denied 1952, 344 U.S. 809, 73 S.Ct. 112, 97 L.Ed. 674.
. Id., 91 U.S.App.D.C. at page 202, 202 F.2d at page 334.
. See cases collected in Tillotson v. United States, ubi, supra note 9.
. United States v. Mitchell, 1944, 322 U.S. 65, 67, 64 S.Ct. 896, 897, 88 L.Ed. 1140.
. Id., 322 U.S. at page 68, 64 S.Ct. at page 897.
. 1948, 335 U.S. 410, 69 S.Ct. 170, 93 D.Ed. 100.
. Id., 335 U.S. at page 414, 69 S.Ct. at page 172.
. 318 U.S. at page 334, 63 S.Ct. at page 610; and see the memorandum upon denial of petition for rehearing. 1943, 319 U.S. 784, 63 S.Ct. 1322, 87 L.Ed. 1727.
. Id., 318 U.S. at page 337, 63 S.Ct. at page 611.
. 6 Cir., 1944, 142 F.2d 904, 907.
. 1944, 323 U.S. 771, 65 S.Ct. 114, 89 L.Ed. 616.
. McNabb v. United States, 318 U.S. at page 346, 63 S.Ct. at page 616.
It will be noted from the dissenting opinion by Judge WILBUR K. MILLER that he and Judges BASTIAN and BURGER are in accord with our views as to the MeNabb rule and the Pierce and Allen cases.
. D.O.Oode § 4-144 (1951) provides that material witnesses who are to be detained shall have suitable accommodations in premises other than those employed for the confinement of persons charged with crime.
. Watson v. United States, supra note 10.
Concurrence in Part
with whom BASTIAN and BURGER, Circuit Judges, concur, dissenting.
Between 5:30 and 6:00 a. m.
The principal reason for reversal advanced by the appellant is that an oral confession, attributed to her in the testimony of two police officers, was inadmissible because they said it was given after midnight Sunday when she had been in custody since 7:30 that morning without having been presented to a committing-magistrate. In her testimony she did not. attribute any coercive effect to the delay in arraignment, nor did she say the-alleged confession was induced or extorted by any form of physical or psychological persuasion or coercion. She does not. make such claims in argument here. Thus she did not say from the stand and does not say now that she confessed involuntarily. Instead, she stoutly swore she did not confess in the post-midnight interview.
Nevertheless, despite the inconsistency of doing so, on appeal the appellant invokes the so-called McNabb rule. Solely because the officers were permitted to testify that Mrs. Rettig told them she stabbed her husband, my brothers of the majority reverse her conviction. Some of them think the confession was the result of pressures (which she denied wére ever applied to her) and was therefore involuntary, and others think it was inadmissible under the doctrine of the Mc-Nabb case, because of the mere lapse of time before arraignment plus what they regard as aggravating circumstances short of coercion. These two theories differ sharply, as will appear.
1. If the confession was involuntarily given, its admission in evidence violated Mrs. Rettig’s constitutional right to due process, and it is not necessary to consider whether the other evidence was sufficient to sustain the jury’s verdict. This is because the reception of a confession which denies a constitutional right requires reversal, even though the evidence apart from the confession was sufficient to justify the verdict of guilt. Brown v. Allen, 1953, 344 U.S. 443, 475, 73 S.Ct. 397, 97 L.Ed. 469; Malinski v. People of State of New York, 1945, 324 U.S. 401, 404, 65 S.Ct. 781, 89 L.Ed. 1029; Lyons v. State of Oklahoma, 1944, 322 U.S. 596-597, 64 S.Ct. 1208, 88 L.Ed. 1481; Bram v. United States, 1897,168 U.S. 532, 540-542, 18 S.Ct. 183, 42 L.Ed. 568. This is true in federal as well as in state courts.
2. On the other hand, if Mrs. Rettig’s confession was merely inadmissible under the McNabb rule prescribed for federal courts,
I cannot concur in the reversal of this conviction on either of the two theories just described and differentiated, for reasons which will be stated separately with respect to each.
1. In my opinion, the confession was not involuntarily given and so was not excludable on constitutional grounds. As I have said, Mrs. Rettig did not claim the confession was obtained from her by any form of coercion or inducement. She simply said she did not confess, thus in effect saying she had not yielded to any sort of pressure. From this I think it follows that the corifession cannot logically be said to have been involuntarily
I do not think the delay in arraignment and the events of Sunday amounted per se to coercion. The Supreme Court’s treatment of the McNabb case confirms me in that view. For the facts assumed and described in the McNabb opinion showed much more prolonged delay in arraignment, much more intensive questioning and, in general, much more psychological pressure than the facts here disclose. Yet the Supreme Court did not hold the McNabb confessions involuntary, and did not reverse the convictions on constitutional grounds. It expressly said its decision was not based on the violation of any constitutional right. Hence I think the experienced trial judge was correct when, after an extensive hearing with the jury absent, he refused to rule that Mrs. Rettig’s confession was involuntary as a matter of law on the face of the factual situation, but left it to the jury to decide the question of voluntariness. Cf. Tyler v. United States, 1951, 90 U.S.App.D.C. 2, 6, 193 F.2d 24, 28, certiorari denied 1952, 343 U.S. 908, 72 S.Ct. 639, 96 L.Ed. 1326. My conclusion is there is no basis for reversal on the ground that the confession was obtained in violation of the appellant’s constitutional rights.
2. Next to be considered is the second theory, adopted by some of the majority, that the McNabb rule was violated here, from which they seem to think reversal automatically follows. My brothers Edgerton and Bazelon say, “The issue is whether the rule adopted by the Supreme Court in McNabb v. United States * * * requires exclusion of the testimony concerning appellant’s oral confession.” I suggest they do not state the issue fully. One question is, as they say, whether Mrs. Rettig’s confession was inadmissible under the McNabb doctrine. But if so, there arises immediately the question whether the conviction should therefore be reversed. For, as I have pointed out above in differentiating the two majority theories, reversal does not necessarily flow from a violation of the McNabb rule of evidence.
Before taking up the two questions which constitute the McNabb issue here, it will be helpful to state in the language of the Supreme Court what the rule is and what it is not. Before doing so, I interject that we of the minority who would affirm are in accord with Judge Danaher’s analysis of the McNabb rule and his approval of the Pierce and Allen cases.
In United States v. Mitchell, 1944, 322 U.S. 65, 67, 64 S.Ct. 896, 897, the Court described the McNabb ruling by saying:
“* # * Inexcusable detention for the purpose of illegally extracting evidence from an accused, and 'the successful extraction of such in-culpatory statements by continuous questioning for many hours under psychological pressure, were the decisive factors in the McNabb case which led us to rule that a conviction on such evidence could not stand.”
And Mr. Justice Reed, concurring in the result of the Mitchell opinion, said, 322 U.S. at page 71, 64 S.Ct. at page 898:
“As I understand McNabb v. United States, 318 U.S. 322, 63 S.Ct. 608, 87 L.Ed. 819, as explained by the Court’s opinion of today, the Mc-Nabb rule is that where there has been illegal detention of a prisoner, joined with other circumstances which are deemed by this Court to be contrary to proper conduct of federal prosecutions, the confession will not be admitted. Further, this refusal of admission is required even though the detention plus the conduct do not together amount to duress or coercion. * * * ”
In Upshaw v. United States, 1948, 335 U.S. 410, 413, 69 S.Ct. 170, the Supreme
With respect to the Upshaw statement of the McNabb rule we said in Garner v. United States, 84 U.S.App.D.C. 361, 364, 174 F.2d 499, 502, certiorari denied 1949, 337 U.S. 945, 69 S.Ct. 1502:
“Under this rule, however, there still remains open in every case the question whether the detention was illegal; that is, whether the delay in presenting the prisoner to a magistrate was unnecessary. For Rule 5(a) of the Federal Rules of Criminal Procedure does not command that an arrested person be taken before a magistrate ‘forthwith.' It provides that the officer ‘shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States.’ This phrasing envisages the possibility of necessary delay. It would be an extension of the Up-shaw opinion to construe it as holding that a confession is inadmissible if given after delay in presenting the defendant to a magistrate because such a construction would completely ignore the word ‘unnecessary’ in Rule 5(a).”
In this case, a murder suspect was taken into custody about 7:30 Sunday morning and was carried before a committing magistrate at 9:00 o’clock Monday morning. I do not think this delay was prima facie “unreasonable” within the meaning of Rule 5(a). Mrs. Rettig made no effort to prove that it was, although the burden of doing so rested upon her. Tillotson v. United States, 231 F.2d at page 738; Pierce v. United States, 91 U.S.App.D.C. at page 23, 197 F.2d at page 193; White v. United States, 5 Cir., 1952, 200 F.2d 509, 512; United States v. Leviton, 2 Cir., 1951, 193 F.2d 848, 854; United States v. Walker, 2 Cir., 1949, 176 F.2d 564, 567. I know of no requirement that committing magistrates be on duty all day Sunday. The police worked all that day tracking down leads, such as appellant’s statement that an unknown intruder killed her husband, which might have exonerated her. Nor does it appear that arraignment was delayed in order to extract the confession. Nobody said, as did an officer in the Upshaw case, that the suspect was held for that purpose. For these reasons, it is my opinion that Mrs. Rettig’s confession was not barred by the McNabb rule.
. This time range was fixed by the appellant.
. Whether she did or not was submitted to the jury. It may have agreed with her, basing its verdict on the other evidence of guilt.
. McNabb v. United States, 1943, 318 U.S.. 832, 63 S.Ct. 608, 87 L.Ed. 819.
. 318 U.S. at page 341, 63 S.Ct. at page 613.
. Brown v. Allen, 344 U.S. at page 476, 73 S.Ct. at page 417.
. With Chief Justice Vinson and Justices Reed, Jackson and Burton dissenting.
. While I think we correctly interpreted the Upshaw case in our opinions in Til-lotson v. United States, 1956, 97 U.S. App.D.C. 402, 231 F.2d 736; Allen v. United States, 1952, 91 U.S.App.D.C. 197, 202 F.2d 329; and Pierce v. United States, 1952, 91 U.S.App.D.C. 19, 197 F.2d 189, all of which the Supreme Court declined to review, I need not depend on that interpretation here, and I do not because we are told that denial of certiorari does not necessarily indicate acquiescence.
. One of the majority opinions states that Mrs. Rettig was not offered an opportunity to see her own relatives or counsel until after the inquest (held on Monday). The statement ignores the fact that two police officers testified Mrs. Rettig not only did not ask to see ber relatives on Sunday but, on tbe contrary, stated “she didn’t want to see any of her people; that she had not been in touch with them and that she didn’t want to see them.” One of the police officers testified he made repeated efforts on Sunday to find out from Mrs. Rettig the name or location of a relative but to no avail. The same officer testified he believed it was not until Monday that Mrs. Rettig gave him the name of her sister. There was evidence that she did not want the services of the attorney provided for her by her sister.
On the other hand, Mrs. Rettig testified that on Sunday she requested a police officer to call her sister, and gave him the telephone number. She further testified that one of the police officers
Other points should be clarified because
