Rettig v. United States

Decision Date26 October 1956
Docket NumberNo. 12697.,12697.
Citation239 F.2d 916
PartiesKatherine RETTIG, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Myer Koonin, Washington, D. C., for appellant. Mr. Harry S. Weidberg, Washington, D. C., also entered an appearance for appellant.

Mr. Lewis Carroll, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty. at the time brief was filed, Harold H. Titus, Jr., and Nathan J. Paulson, Asst. U. S. Attys., were on the brief, for appellee. Mr. Oliver Gasch, U. S. Atty., also entered an appearance for appellee.

Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN, and BURGER, Circuit Judges, sitting in banc.

Argued in Banc May 8, 1956.

EDGERTON, Chief Judge, 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, BAZELON, 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 BASTIAN 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 exclusion of the testimony concerning appellant's oral confession. We conclude that it does, because, like the McNabbs, appellant confessed as a result of being "questioned while held in `plain disregard of the duty enjoined by Congress upon Federal law officers' promptly to take them before a judicial officer." Upshaw v. United States, 1948, 335 U.S. 410, 413, 69 S.Ct. 170, 171, 93 L.Ed. 100. And in that view of the case, we do not reach the question of legal effect of psychological mistreatment of the appellant during questioning.

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 * * *."1 Rule 5(b) empowers the committing officer to admit such persons to bail and directs him to inform such persons of the complaint against them, their right not to make a statement and that any statement they do make may be used against them.2 Emphasing that this required procedure "checks resort to those reprehensible practices known as the `third degree' * * *," 318 U.S. at page 344, 63 S.Ct. at page 614, the Supreme Court in McNabb established a rule of evidence excluding confessions "secured through * * * flagrant disregard of the procedure which Congress has commanded * * *." Id., 318 U.S. at page 345, 63 S.Ct. at page 615. In describing the circumstances in which the commitment requirements were violated there, the Court mentioned not only that the McNabbs had not been brought promptly before a magistrate, but in addition described the unremitting and obviously oppressive interrogation to which they had been subjected. Id., 318 U.S. at pages 344-345, 63 S.Ct. at pages 614-615.

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. Upshaw 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 the illegal detention.3 We stressed, as the Supreme Court pointed out, that Upshaw's "detention unlike McNabb's, `was not aggravated by continuous questioning for many hours by numerous officers.'" 335 U.S. at page 412, 69 S.Ct. at page 171. In holding the confession inadmissible under the McNabb rule, the Supreme Court made clear that in McNabb it had described the oppressive interrogation simply "to show that the record left no doubt that the McNabbs were not promptly taken before a judicial officer as the law required, but instead were held for secret questioning * * *." 335 U.S. at page 413, 69 S.Ct. at page 171. The Court added: "The McNabb confessions were thus held inadmissible because the McNabbs were questioned while held in `plain disregard of the duty enjoined by Congress upon federal law officers' promptly to take them before a judicial officer." Ibid., emphasis supplied. The Court pointed out that its holding in Mitchell "was only that Mitchell's subsequent illegal detention did not render inadmissible his prior confessions," ibid.; and it declared that under the McNabb rule "* * * a confession is inadmissible if made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the `confession is the result of torture, physical or psychological * * *.'" Ibid., emphasis supplied. The dissenting justices, per Mr. Justice Reed, found the majority opinion inconsistent with the Mitchell explanation of McNabb, 335 U.S. at page 423, 69 S.Ct. at page 176, and criticized it for holding that "illegal detention alone is sufficient to bar from evidence a confession to the police during that unlawful detention." Id., 335 U.S. at page 430, 69 S.Ct. at page 180.

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. Such 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).4

In two recent state confession cases, the Supreme Court distinguished the coerced confession rule, applicable in state as well as federal courts, from the McNabb 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.
* * * 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.7 In Garner v. United States, the first case to come before this court after Upshaw, we declared:

"* * * 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.9 We said: "Further study of the Upshaw opinion causes us to conclude that the Court did not intend to enlarge and extend the original McNabb ruling. Its restatement of the rule should be read, we think, in the light...

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  • Starr v. United States
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • October 17, 1958
    ...uncommon that the McNabb rule was essentially a variant of the coerced confession rule. See, e.g., Rettig v. United States, 1956, 99 U.S.App.D.C. 295, 300-301, 302, 239 F.2d 916, 921-922, 923. That was the view taken by the Government itself before Mallory. Indeed, even in its brief in this......
  • United States v. Ragen
    • United States
    • U.S. District Court — Northern District of Illinois
    • April 28, 1959
    ...U.S.C. Fed. Rules Crim.Proc. rule 5(a). See Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479; Rettig v. United States, 99 U.S.App.D.C. 295, 239 F.2d 916. This is the same principle which is applied to English courts in regard to exclusion of confessions taken contrary t......
  • United States v. Townsend
    • United States
    • U.S. District Court — District of Columbia
    • May 14, 1957
    ...law enforcement officers and exclusion of evidence for purpose of securing compliance with Federal Rules. 23 Rettig v. United States, 99 U.S.App. D.C. 295, 239 F.2d 916, 923: "Another circumstance to be considered, but only in the event it is shown that earlier arraignment was not possible,......
  • Watson v. United States, 13689.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • August 19, 1957
    ...in which the subject had been extensively treated; just as clearly our view has been rejected. Cf. Rettig v. United States, 1956, 99 U.S.App.D.C. 295, 302, 305, 239 F.2d 916, 923, 926, En Banc, setting forth that in the opinion of five members of this court, the McNabb rule called for exclu......
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