168 F.2d 167 (D.C. Cir. 1948), 9621, Upshaw v. United States

Docket Nº:9621.
Citation:168 F.2d 167
Opinion Judge:WILBUR K. MILLER, Associate Justice.
Attorney:Mr. Joel D. Blackwell, of Washington, D.C., for appellant. Messrs. George Morris Fay, U.S. Atty., and John C. Conliff, Sidney S. Sachs, and John D. Lane, Asst. U.S. Attys., all of Washington, D.C. for appellee.
Judge Panel:Before EDGERTON, CLARK, and WILBUR K. MILLER, Associate justices. EDGERTON, Associate Justice (dissenting).
Case Date:April 19, 1948
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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168 F.2d 167 (D.C. Cir. 1948)




No. 9621.

United States Court of Appeals, District of Columbia.

April 19, 1948

Submitted Nov. 26, 1947.

Writ of Certiorari Granted June 14, 1948.

See 68 S.Ct. 1505.

Appeal from the District Court of the United States for the District of Columbia.

Andrew Upshaw was convicted of theft and he appeals.


Mr. Joel D. Blackwell, of Washington, D.C., for appellant.

Messrs. George Morris Fay, U.S. Atty., and John C. Conliff, Sidney S. Sachs, and John D. Lane, Asst. U.S. Attys., all of Washington, D.C. for appellee.

Before EDGERTON, CLARK, and WILBUR K. MILLER, Associate justices.

WILBUR K. MILLER, Associate Justice.

The appellant, Andrew Upshaw, was arrested at 2:00 a.m. on Friday, June 6, 1947, and shortly after 9:00 o'clock the next morning confessed to the theft for which he had been taken into custody. He was not taken before a committing magistrate until Monday, June 9. He appeals from the judgment of conviction entered against him pursuant to the verdict of a jury in the District Court of the United States for the District of Columbia on a single ground which he states in his brief as being ‘ that the defendant had been detained an unreasonable time after the arrest before the alleged confession was made.’

The United States Attorney filed in this court a written confession of error and motion to remand for the reason that he believed the appellant's confession was inadmissible. In such circumstances it is the duty of the appellate court to examine the record and determine for itself whether there was prejudicial error.1

A confession voluntarily given is admissible in evidence. We do not read the McNabb and Mitchell cases, and the recent Haley case,2 as holding otherwise. Conversely, of course, a confession involuntarily made is inadmissible.

It has long been held that a confession extorted by physical violence is involuntary and must not be received in evidence. When there is evidence both affirming

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and denying that force was used, the issue of fact so formed must be resolved by the jury. The McNabb case extends that established doctrine by pointing out the indisputable fact that coercion without physical brutality may extort a confession; 3 and that an admission so induced is involuntary. Specifically, it was there held that illegal detention, aggravated by undenied continuous questioning for five or six hours by half a dozen officers, amounted to such invalidating coercion as a matter of law.

The Haley case is to the same effect. Its facts were almost identical with the McNabb facts, except that Haley was a fifteen year old boy, presumably even more susceptible to the psychological pressure of continuous questioning for five hours by relays of policemen than were the more mature McNabbs.

It is important to note it was undisputed in the McNabb and Haley cases that long-continued questioning during illegal detention actually occurred. Had there been conflicting evidence on that score, it is safe to suppose the verdict of a properly instructed jury with respect to that issue of fact would have been regarded as controlling, just as it is with regard to controverted evidence of brutality. Indeed, in Haley's case physical brutality was alleged and denied, and so the court put that controverted evidence to one side and considered only whether the undisputed facts as to psychological pressure mad the confession invalid as a matter of law.

But here the evidence shows without contrariety that Upshaw was arrested at 2:00 a.m. on Friday, June 6, and confessed about 9:00 a.m. on Saturday, June 7, without having been taken before a committing authority. Detaining him for slightly more than twenty-four hours may have been unnecessary delay under Rule 5(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687. But that illegal detention, if such it was, was not aggravated by continuous questioning for many hours by numerous officers, as was true in the McNabb and Haley cases and in the Akowskey case. 4 On the contrary, the questioning of Upshaw was, as the United States attorney put it, neither extensive nor coercive. He was questioned several times during his day of detention, but never by more than one officer and never more than thirty minutes at a time; all of which is uncontroverted. We are unwilling to say that, as a matter of law, such questioning during short detention brings Upshaw within the pattern of the McNabb case.

Had this appellant claimed and argued that the questioning was so intensive as to force his confession from him, perhaps the jury should have been told to say whether so or not; but he made no such claim at the trial and does not assert it before us.

Upshaw contents himself with saying he was illegally detained from 2:00 a.m. on Friday until his arraignment on the following Monday; and with arguing that his confession, given during that period of detention, was therefore inadmissible. As we have pointed out, he does not rely on the brief questioning as an aggravating circumstance. Upshaw's argument overlooks two important factors: first, that he confessed shortly after 9:00 a.m. on Saturday, so the subsequent portion of his detention, even if illegal, did not affect the admissibility of his confession, as it did not in the Mitchell case; and, second, that illegal detention, standing alone and without more, does not invalidate a confession, unless the detention produced the disclosure. That was expressly held by Chief Justice Groner in the opinion prepared by him for this court in Boone v. United States, 82 U.S.App.D.C. 359, 164 F.2d 102, in which the Mitchell case was relied upon as justifying the ruling.

It is strongly urged that the police are culpable for not taking Upshaw before a committing magistrate on Friday; but, however blameworthy they may have been on that score, we discern no reason for disturbing

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the appellant's conviction because of it. We do not condone official misconduct; on the contrary, we share the indignation expressed at unnecessary delay in arraigning prisoners. Police executives should discipline officers who are guilty of that practice.

But the argument that Upshaw's confession was on that account inadmissible disregards the decisive fact that here, as in United States v. Mitchell (322 U.S. 65, 64 S.Ct. 898), there was no disclosure induced by illegal detention. Upshaw does not contend that his confession was so induced. If it be granted that detaining him all day Friday was illegal, nevertheless the disclosure he made, not being the fruit of the illegal detention, was relevant and admissible. Being relevant, it could be excluded, as the Supreme Court said of Mitchell's confession, ‘ only as a punitive measure against unrelated wrongdoing by the police.’ We cannot exclude an admissible confession, and so discharge a confessed criminal, ‘ as an indirect mode of disciplining misconduct.’ To do so would be to punish society, not the police. This we understand to be the position taken by the Supreme Court in the Mitchell case.

The actual holding of the McNabb decision, as we understand it, does not apply to a factual situation such as that before us. In the Mitchell opinion it is pointed out that ‘ inexcusable detention for the purpose of illegally extracting evidence’ from an accused, and the successful accomplishment of that purpose by continuous questioning for many hours under psychological pressure, 5 were the decisive features in the McNabb case which led the court to rule that a conviction on such evidence could not stand. In the present case no aggravating circumstance appears and, as we have shown, the detention is not alleged to have brought about the confession. The Supreme Court has never held, as far as we are able to ascertain, that illegal detention of a prisoner, without additional and aggravating circumstances, invalidates a confession which was not induced by it. In fact, the Mitchell opinion indicates to the contrary and we expressly so held in the Boone case.

In our view the confession of error by the United States Attorney was based on an erroneous conception of the legal principle involved. He says...

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