*1 ELY, Before HUFSTEDLER Judges. Circuit PER CURIAM: Stage appeals from his conviction for violating (18 Dyer Act U.S.C. § Vegas, in Las He was arrested Ne- August vada, 20, 1970, on state charges to the unrelated federal offense. county jail confined from August August 26, 1970, to20 before he magistrate. taken before a On Au- Wright, Judge, Eugene gust 25, 1970, he a “waiver of opinion. dissented filed rights” Dyer and confessed to Act vio- During six-day lation. interval from his arrest and confinement appeared date that he before Commissioner, interrogat- sheriff, by the local detectives office, from the sheriff’s several agents. FBI Federal law and state en- frequently forcement officers attended interrogation each sessions. other’s At custody, the outset of his federal agents began questioning in- him about transportations terstate of stolen cars. agents gave one of the warning. him a Miranda said that he did not want to make state- lawyer. ments until he could talk to a questioning continued, and no law- yer him.
The confession was obtained Mc- violation of both the Miranda and 3501(c).1 identify Nabb and of was asked rules a man whom he earlier, argues briefly year the confes- had seen *2 that over a The Government because nevertheless admissible sion was The evidence would have been rights. Stage of A a his waiver prove Stage sufficient to that stole involuntary a of law is as matter waiver Continental, a crime with which he was by one who has been it is made when charged. not here The is custody five for detained theretofore Stage posses whether evidence that had being days before a readi- taken sion of the Cadillac in California magistrate, who been ly has available had been stolen in Florida seven months relays by subjected of law to equivocal before and the during his deten- officers enforcement Stage of as the man who took the Cadil tion, with not been and who has beyond prove were lac sufficient to a expressed despite desire his counsel Stage transported reasonable doubt such assistance. commerce, Cadillac interstate evi- Apart knowing it to been stolen. We inadequate to sustain dence was lapse think not. The of time between February 20, 1970, man a viction. On the Florida theft and ex the California automobile a Florida to went change, and uncertain identification buy a represented he wanted Stage engender of as the Florida thief given a was used and Stage’s guilt. reasonable doubt of The The man around block. test drive fully developed Government the available companion drove woman and a at evidence the time of trial. No useful return. not Seven and the Cadillac remanding purpose by served be the same Cad- drove a man months later a cause new trial. lot. The used-car a into California judgment reversed, The with direc- to trade wanted that he man indicated tions to dismiss indictment. A used car. for another the Cadillac Lincoln lent him a salesman Judge EUGENE away the The man drive. to test (dissenting): Cali- The not and did return. Lincoln Respectfully, I dissent. fornia salesman majority’s the Continental. of took statement man who facts of passes lightly ques- salesman’s over several difficult Florida concerning admissibility took man who as the tions that he However, equivocal. testified not these are positive.” disagreement witness’s be with the “couldn’t focus position understandable: certitude is of this case. lack provides: 3501(c) given by person 1. 18 six hours such within by prosecution any “(c) immediately following In criminal or oth- his arrest by Provided, the District of or the United States the time er That detention: given Columbia, or made confession in this subsection limitation contained therein, by person any apply who is defendant which case in shall person person delay bringing arrest or was under while such be- such custody magistrate be- detention or other other such officer fore period law-enforce- officer or law-enforcement is found such six-hour agency, inadmissible not be consid- ment shall be reasonable the trial delay bringing solely transportation such ering because of the means of magistrate person other of- or before a to the near- to be traveled distance persons empowered magistrate to commit ficer or other est available such against charged added.) the laws (Emphasis with offenses officer.” of the District Accord, or Halbert 1226; 1970) is found if confession such of Columbia 436 F.2d Smith 1968) been made the trial United States weight voluntarily 401; if Cote v. United States jury given left 1966) denied, cert. made or such L.Ed.2d 110. confession if major My dissatisfaction with re- same car was involved in the Florida sult here is order that on remand theft and the California ex- vehicle change, must eye-witness be dismissed. identifi- cations. agree cannot the evidence guilt, ignoring “in- suppressed Had confession been adequate to sustain the conviction.” On and convicted on the basis contrary, quite it sufficient other dif- would have had no judge es tive. Skillful man who stole positively vehicles lot and drove not return. who left the Cadillac at da car III, purportedly to drive a test Under the appearance block.” test used car chasing sustain into a this is thé‘ THE COURT: knowing just positive, no sir. THE WITNESS: THE WITNESS: itive THE COURT: Another One In a trial from the [*] drive, drive, the car involved second identification he obtained the Continental on 1969 Lincoln elicited these February of his six Instead of lot in conviction. [*] he stole identified pretext of used car. He was government witness, a Flori- witness: man. drove the with the months 1969 the about [*] Long Beach, government’s off automobile . the Cadillac “around the court, I two crucial Well, in that later trading . Sir, returning car. am interested [*] how sure stolen in Florida intention a man of similar Cadillac into a the . Are it was I was not a man walked I wouldn’t [*] as now? Continental. exchange Long couldn’t California. dealership, California. permitted witnesses the man you pos- the Cad- respons- stipulat- you Florida. after a Beach -X- Mark posi- trial pur- are bet did ney case was recollection fifteen and did in fact think the confession. When the record is that the trial trier trier event ness’ witness identification other admissible evidence determine whether or he could as well on the so. would be sufficient witnesses —if my ability tion for interstate salesman. motor have most Glasser United States v. trial tion and 80, reviewing course, we view contest the ficulty ment’s case to Indeed, I would not trial testimony 62 S.Ct. offered concluded that been stolen. might judge could have credited the testimony vehicle, knowing favorable question, reasonable accurate. fact, v. United witness stated: the persuasive the best inference sustaining this is Clearly still have declined to proposition 457, testimony not the observed: creditable sufficiency sustain a expect Nelson, 419 then, doubt. States, evidence in the transportation of a months demeanor, L.Ed. not a witness’ appellate even without by the attor- government man.” might sustain a convic- judge basis the that the is whether the that vehicle “To the conviction. conviction, eye-witnesses government’s It is for 315 U.S. the 680 *3 government. majority to after credited— While guilty be- court, two convict, (1942); stipula- govern- best accept light ease, done best wit- eye- eye- the ear 60, In that, To best on life sir. course, that the con- I don’t know “Of my ability man. this is the having absolutely necessary, fession Thus, other evidence in without the in mind the even government stipulation had the case.” tes- A motion strike
timony was denied. government’s case, conclude was suffi
even without support
cient a conviction. specific
remand with instructions finding trial enter a whether he was convinced government’s case the absence were, intro If he
duction confession would be error
harmless in a trial to the court
and the conviction should be affirmed. not, acquittal.
If he should order an Cf. Campbell States, v. United (1961); 421, 5
81 S.Ct.
L.Ed.2d 428
Cepelis,
Alternatively, the case could be re-
manded a new trial majority finds
fession the inadmissible.
But should
missed. Appellee, CRUSCO, Appellant
Peter A. in No. 72-1004, Philip A. Cimmino. CIMMINO,
Appeal Philip 72-1004,
Nos. 72-1005. Court of
Third Circuit.
Submitted June Under Third 12(6). Circuit Rule July 11,
Decided