United States v. Middleton

• Decision Date: 05 April 1965
• Docket Number: No. 389,Docket 29453.,389
• Parties: UNITED STATES of America, Appellee, v. Herbert H. MIDDLETON, Jr., Appellant.
• Court: U.S. Court of Appeals — Second Circuit

344 F.2d 78 (1965)

UNITED STATES of America, Appellee, v. Herbert H. MIDDLETON, Jr., Appellant.

No. 389, Docket 29453.

United States Court of Appeals Second Circuit.

Argued March 18, 1965.

Decided April 5, 1965.

Jonathan L. Rosner, New York City, for appellant.

John F. X. Peloso, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, Neal J. Hurwitz, Asst. U. S. Atty., on the brief), for appellee.

Before MOORE, KAUFMAN and MARSHALL, Circuit Judges.

KAUFMAN, Circuit Judge:

Contending that certain incriminating material was unlawfully obtained by federal officers and therefore inadmissible at his trial, Herbert H. Middleton, Jr., appeals from a judgment of conviction, entered after a non-jury trial, for violating 18 U.S.C. § 641 by stealing a calculating machine belonging to the United States Navy. Found guilty, in the main, on allegedly tainted handwriting specimens and inculpatory statements, appellant Middleton was sentenced to nine months imprisonment.¹ We find that at least some, if not all, of the incriminating material was obtained during an unreasonable delay in arraignment, in violation of Rule 5(a), Fed.R. Crim.P., and that its introduction at trial compels reversal.

On the morning of September 29, 1964, the calculating machine, valued at over $300, was discovered missing from the fourteenth floor of the Federal Office Building, 90 Church Street, Manhattan. Those charged with investigating the theft (one of a series of burglaries in the building) also found scrawlings on unofficial correspondence in an adjoining office, including the misspelled phrase "yours turly." At approximately 5:00 that evening, Captain Edgar Dibble, the Naval Officer in charge of security on the fourteenth and fifteenth floors, observed Middleton and Gilliam standing near the fourteenth-floor elevator. Dibble asked the two men to identify themselves and state their business. Middleton gave his name and said he was in the building to see a narcotics agent, but Gilliam stood mute. Both were taken to the fifteenth-floor duty office where they were joined by the Lieutenant of Guards, Joseph Giordano, and two Postal Inspection Aides, Edward Lauth and Rudolph Nero.

At approximately 5:15, one of the investigators called the Narcotics Bureau to verify Middleton's story, but was unable to contact the agent he had named, one Cleophus Robinson. Not satisfied with Middleton's explanation of his presence on the fourteenth floor, although the Narcotics Bureau had its offices on the sixth, the officers escorted the two suspects to the Narcotics Bureau to await word from Agent Robinson. At about 5:35, he was reached by telephone and advised the investigating officers that Middleton, an informant, had an appointment to meet with him earlier that afternoon. The agent added, however, that Middleton had visited the Bureau's offices often enough to know that they were not on the fourteenth floor. Soon thereafter, Lauth learned that Middleton and Gilliam had been seen in the building the afternoon before under suspicious circumstances. With this information, Lauth telephoned his superior, Inspector Martin Kogel, who directed that the suspects be held for questioning in the Postal Inspectors' fourth-floor office in the same building.

Between 6:00 and 7:00 p. m., Lauth interrogated Middleton, first advising him of his right to remain silent. After inquiring into Middleton's background and seeking a further explanation of his presence on the fourteenth floor, he requested a handwriting sample. Middleton complied, writing out certain words dictated by Lauth, including "yours truly," which Middleton proceeded to misspell "yours turly." There is no indication that Gilliam was questioned during this period.

At 7:00 p. m. Inspector Kogel arrived and immediately informed Middleton and Gilliam that they need not answer any questions and that anything they said might be used against them. After this admonition, Middleton acknowledged that the handwriting specimen taken previously was his and gave additional calligraphic samples. Kogel questioned Middleton and Gilliam alternately between 7:00 and 9:00; Gilliam balked at answering questions, but Middleton was generally cooperative. During this period both began to suffer narcotics withdrawal syndromes and were given a relief prescription of elixir turpenhydrate, a type of cough medicine with codein, which apparently (and without contradiction by appellant) did not affect voluntariness.

At about 9:00 p. m. Middleton told Lauth that he and Gilliam had stolen the calculator the previous evening. He repeated the admissions to Inspector Kogel, who thereupon sought further instructions from an Assistant United States Attorney. At 10:00, Kogel was authorized to arrest only Middleton and lodge him overnight at Federal Detention Headquarters. Notwithstanding these instructions, Kogel persisted in interrogating Middleton, taking a typewritten, signed confession between 11:00 and 11:45 p. m. It was not until 12:50 a. m. that appellant was lodged in the Federal Detention Headquarters at West Street. After spending the remainder of the night there, he was arraigned before a Commissioner the next morning. At the trial, the handwriting specimens and oral and written statements were admitted in evidence, over objection, and constituted the real basis for Middleton's conviction as shown by the acquittal of Gilliam, who had refused any cooperation from the beginning.

I.

Rule 5(a), Fed.R.Crim.P., requires "any person making an arrest without a warrant" to "take the arrested person without unnecessary delay before the nearest available commissioner." To insure compliance with this Rule, the Supreme Court has mandated that any evidence taken during an unnecessary or unreasonable delay in arraignment may not be admitted in federal criminal proceedings. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).

On the record before us, we find that Middleton was under arrest for some time — beginning at the latest at approximately 7:00 p. m. — before he made the incriminating admissions at 9:00 p. m. After he was taken to Inspector Kogel's office and subjected to considerable interrogation in the constant company of officers and guards, a person in Middleton's position — especially given his youth, low intelligence, and narcotics addiction — must have understood and believed that he was in the power and custody of the officials and therefore under arrest. See Seals v. United States, 325 F.2d 1006 (D.C.Cir. 1963); Kelley v. United States, 111 U.S. App.D.C. 396, 298 F.2d 310 (D.C.Cir. 1961). Indeed, Kogel, the officer in charge, reluctantly admitted, and the Government now concedes, that Middleton, was not free to leave after 5:35. And surely our determination that he was arrested should not hinge on the fact that the officers were not formally "authorized" to arrest until 10:00 p.m.,² for the relevant factor to consider on the facts present here is the impression conveyed to the person being held. Otherwise, we can conceive of no sound reason why the defendant would have supplied that most incriminating link — the mispelled specimen.

We also are impelled to conclude that the delay between the time when arrest could have been lawfully made by the accumulation of an almost airtight case³ and arraignment, when viewed in the context of what transpired, was unnecessary. The Supreme Court has said that an arrested person must be arraigned "as quickly as possible" so that he may be advised, by a judicial officer, of his constitutional right to counsel and of his privilege against self-incrimination. Any period of delay becomes unreasonable if used, as here, "to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements" to support the arrest and ultimately the defendant's guilt; "the delay must not be of a nature to give opportunity for the extraction of a confession." Mallory v. United States, 354 U.S. 449, at 454-455, 77 S.Ct. 1356, at 1359-1360, 1 L.Ed.2d 1479.

As we have already indicated, before 9:00 p. m. when Middleton confessed to the theft, he had given several handwriting samples, which included the highly incriminating misspelling of "yours turly." Moreover, the officers had already verified his story with Narcotics Agent Robinson and both defendants had been identified as having left the building under suspicious circumstances the afternoon before. The persistent interrogation that followed, after the inquiry had shifted from the investigatory to the accusatory stage, cannot be justified in the circumstances of this case and leads us to the inescapable conclusion that it was in furtherance of an effort to make an already airtight case ironclad by the extraction of a confession.⁴

Although we recognize that Rule 5(a) is not violated by a delay for the purpose of arraigning the defendant before a Commissioner the next morning, United States v. Vita, 294 F.2d 524, 529 n. 1 (2 Cir. 1961), cert. denied, 369 U.S. 823, 82 S.Ct. 837, 7 L.Ed.2d 788 (1962); United States v. Ladson, 294 F.2d 535, 537 n. 1 (2 Cir. 1961), cert. denied, 369 U.S. 824, 82 S.Ct. 840, 7 L.Ed.2d 789 (1962), the unavailability of a Commissioner does not license the police to continue their interrogation through the night. The objective of Rule 5(a) is to check resort...