Jones v. United States

• Citation: 342 F.2d 863,119 US App. DC 284
• Decision Date: 16 July 1964
• Docket Number: 17690,No. 17688,17689,17692.,17691,17688
• Parties: David R. JONES, Appellant, v. UNITED STATES of America, Appellee. Willie L. SHORT, Jr., Appellant, v. UNITED STATES of America, Appellee. Arthur L. JONES, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

119 US App. DC 284, 342 F.2d 863 (1964)

David R. JONES, Appellant, v. UNITED STATES of America, Appellee.

Willie L. SHORT, Jr., Appellant, v. UNITED STATES of America, Appellee.

Arthur L. JONES, Appellant, v. UNITED STATES of America, Appellee.

Nos. 17688, 17690, 17689, 17691, 17692.

United States Court of Appeals District of Columbia Circuit.

Argued April 29, 1964.

On Rehearing Decided July 16, 1964.

Mr. Jerome J. Dick, Washington, D. C. (appointed by this court) for appellants in Nos. 17688, 17690 and 17692.

Mr. Gerry Levenberg, Washington, D. C., with whom Mr. Harris Weinstein, Washington, D. C. (both appointed by this court) was on the brief, for appellant in Nos. 17689 and 17691.

Mr. John A. Terry, Asst. U. S. Atty., for appellee. Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker, Joel D. Blackwell, Gerald A. Messerman, Asst. U. S. Attys., and Robert A. Levetown, Asst. U. S. Atty., at the time the brief was filed, were on the brief for appellee. Messrs. Barry I. Fredericks, B. Michael Rauh and William C. Weitzel, Jr., Asst. U. S. Attys., also entered appearances for appellee. Mr. Judah Best, Asst. U. S. Atty., at the time the brief was filed, also entered an appearance for appellee.

Before BAZELON, Chief judge, EDGERTON and PRETTYMAN, Senior Circuit Judges,^* and WILBUR K. MILLER, FAHY, WASHINGTON, DANAHER, BASTIAN, BURGER, WRIGHT, and McGOWAN, Circuit Judges.

On Rehearing in banc Decided July 16, 1964.

EDGERTON, Senior Circuit Judge:

Judges Bazelon, Fahy, Washington, Wright, and McGowan concur in parts I, II, and VI of this opinion. These parts are the opinion of the court. Judges Bazelon, Fahy, and Wright join in parts III, IV, and V, which are not the opinion of the court.

Willie Lee Short and David Jones appeal from convictions of assault with intent to rob. D.C.CODE § 22-501. Short, David Jones and Arthur Jones appeal from convictions of robbery. D.C.CODE § 22-2901. The crimes were alleged to have occurred on August 3 and July 28, 1962.

A warrant for Short's arrest was issued in the District of Columbia in August, 1962. On Thursday, September 13, police in Raleigh, North Carolina, arrested him on a state charge, notified the District of Columbia police, and got from Short a signed "waiver of extradition." On Saturday, September 15, Detective Sergeant O'Bryant of the District of Columbia police arrived in Raleigh with the warrant and wrote on it: "Arrested 9-15-62 10:30 AM Sheriff's Office Raleigh N.C. Det. Sgt. Tilmon B. O'Bryant."

By 11:00 AM O'Bryant had begun to question Short. At first he denied all guilt, but according to O'Bryant's testimony on cross-examination he "admitted his participation" within 2 or 3 minutes. O'Bryant questioned him about an hour and a half or two hours before he began making confessions which O'Bryant typed.

On Sunday, September 16, O'Bryant brought Short to the District of Columbia. On Monday morning Short was taken for the first time before a committing magistrate, who appointed a lawyer to represent him. The lawyer talked with him five or ten minutes and told the judge he waived preliminary hearing. Short did not know what this meant. He could not make bond and was taken back to jail. Fifteen days later, on October 2, he was taken before a grand jury and questioned. The confessions typed in North Carolina were read and he confirmed them. Indictments followed. The confessions were admitted in evidence at the trials.

I

Rule 40(b), F.R.CRIM.P., requires that a person "arrested upon a warrant issued in another state * * * shall be taken without unnecessary delay before the nearest available commissioner or a nearby judge of the United States in the district in which the arrest was made" who "shall inform the defendant of the charge against him, of his right to retain counsel and of his right to have a hearing or to waive a hearing by signing a waiver before the commissioner or judge. The commissioner or judge 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, shall allow him reasonable opportunity to consult counsel and shall admit him to bail as provided in these rules."¹ There was no compliance with this Rule.

When O'Bryant, in the Sheriff's office in Raleigh, wrote on the warrant: "Arrested 9-15-62 10:30 AM", it was his duty to take Short "without unnecessary delay" before a magistrate who would advise him of his rights. Instead, O'Bryant questioned him at length. O'Bryant "did not see any need to take him before a committing magistrate in the State of North Carolina" and made no effort to do so. In oral argument of this appeal the government conceded that Rule 40(b) should have been and was not complied with.

Though Short had been in the custody of state officers, at some time he became O'Bryant's prisoner. There is no evidence that this time was later than 10:30 AM, when O'Bryant wrote "Arrested" on the warrant, or that the state officers who then allowed him to question Short in violation of law would not have allowed him to take Short before a magistrate in compliance with law. He testified that the state officers were "most hospitable".² "Unnecessary delay", therefore, began not later than 10:30 AM and included the time some two hours later when O'Bryant began typing the confessions that were introduced in evidence at the trials.

Some delay for the purpose of questioning an arrested person to determine whether he should be held or released has sometimes been thought "necessary". But this assumes some appropriate purpose for the delay other than obtaining a confession, as in Metoyer v. United States, 102 U.S.App.D.C. 62, 250 F.2d 30 (1957), and Heideman v. United States, 104 U.S.App.D.C. 128, 259 F.2d 943 (1958), where "inquiry to make sure that the police were not charging the wrong persons" (Heideman, 104 U.S. App.D.C. at 130, 259 F.2d at 945) seemed appropriate. It has nothing to do with this case. O'Bryant did not go from the District of Columbia to North Carolina with the arrest warrant in his pocket for any such purpose. He well knew that Short was to be held. He had no authority to release him. Moreover O'Bryant testified that Short made an oral confession within "two or three minutes." The government does not challenge the trial judge's findings that the purpose of O'Bryant's interrogation of Short was "to get a confession out of him." Before he began to write, he subjected Short to an hour and a half or two hours of questioning for the purpose of getting the confessions which O'Bryant typed and which were introduced in evidence. The time lag occurred not while the statements were being typed but before the typing began. There is nothing to take this case out of the McNabb-Mallory rule that "a confession is inadmissible if made during illegal detention due to failure promptly a carry a prisoner before a committing magistrate". Upshaw v. United States, 335 U.S. 410, 413, 69 S.Ct. 170, 93 L.Ed. 100 (1948). Short's confessions should not have been admitted in evidence.³ His convictions must therefore be reversed.

II

In each trial, Short's confession was read to the jury with "name" or "named person" substituted for the names of the Joneses. But as the Supreme Court has said, other testimony may make it impossible for such a device to divert incrimination from the confessor's co-defendants to "an anonymous nobody". Stein v. New York, 346 U.S. 156, 194, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953). In the present case, other testimony about David and Arthur Jones made it obvious that the omitted names were theirs. Short's illegally obtained confessions therefore prejudiced them as well as him.

As against a confessor's co-defendants, the confession is inadmissible hearsay. In accordance with time-honored custom,⁴ the trial judge cautioned the jury that a confession is evidence only against the confessor. But no jury can forget one defendant's confession in considering the case of a co-defendant whom it implicates. Speaking for the Second Circuit, Judge Learned Hand called the time-honored custom a "subterfuge". He said: "There is no reason why the prosecution if it chooses to indict several defendants together should not be confined to evidence admissible against all." But he said the "rule probably furthers, rather than impedes, the search for truth, and this perhaps excuses the device which satisfies form while it violates substance; that is, the recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody else's." Nash v. United States, 54 F.2d 1006, 1007 (1932). As this statement suggests, the theory behind the subterfuge probably is that a confession is such valuable evidence against the confessor that sound policy permits its use at a joint trial, despite the harm it does to the confessor's co-defendants who ought to have the protection of the hearsay rule. In 1957 the Supreme Court sustained a co-defendant's conviction where (1) the confession was admissible against the confessor, (2) it was impractical to delete references to the co-defendant, (3) there was enough other evidence against him to sustain his conviction, and (4) the time-honored admonition to the jury was clearly and repeatedly given.⁵

Since Short's confessions were not admissible even against him, there is no reason whatever for permitting them to prejudice his co-defendants. And the purpose of the McNabb-Mallory rule, to discourage prolonged questioning in order to get a confession before the suspect is told of his rights by a magistrate, would be defeated as much by allowing a wrongly obtained confession to be used against co-defendants as by allowing it to be used against the confessor himself. It follows that the convictions of the Joneses as well as the convictions of Short should be reversed.

In Anderson v. United States the Supreme Court held that admission in evidence of illegally obtained confessions of some defendants vitiated the...