United States v. Halbert

Decision Date07 December 1970
Docket Number25761.,No. 25704,25704
Citation436 F.2d 1226
PartiesUNITED STATES of America, Appellant, v. William Darrell HALBERT, Appellee (two cases).
CourtU.S. Court of Appeals — Ninth Circuit

Ann Bowen (argued), Asst. U. S. Atty., Richard K. Burke, U. S. Atty., Tucson, Ariz., for appellant.

Philip Fahringer (argued), of Calborne & Severyn, Tucson, Ariz., for appellee.

Before DUNIWAY and CARTER, Circuit Judges, and SWEIGERT,* District Judge.

JAMES M. CARTER, Circuit Judge.

The district court granted Halbert's motion to suppress a confession to an FBI agent, relying on 18 U.S.C. § 3501 (c). The government took an interlocutory appeal under 18 U.S.C. § 3731. The major question presented is the proper construction of 18 U.S.C. § 3501, from Title II of the Omnibus Crime Control and Safe Streets Act of 1968, P.L. 90-351, 90th Congress, June 19, 1968, 82 Stat. 197, on which, as yet, there is little case law. We reverse.

After the United States filed its appeal, Halbert filed a notice of appeal, purporting to be a cross appeal, # 25,761. There is no statutory or case authority for such appeal. Halbert's appeal is dismissed as improperly taken. However, we may properly consider, under the appeal by the United States, Halbert's contention on his purported appeal, viz., whether there was given a proper warning under Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

THE FACTS

Halbert was indicted under the Dyer Act, 18 U.S.C.A. § 2312, for transporting a stolen car from Los Angeles, California to San Simon, Arizona. In the afternoon of Tuesday, November 11, 1969, Halbert was arrested by state officers with three other persons at San Simon, Arizona on the state charge of Grand Theft Auto. The four arrestees were transported to Bowie, Arizona, booked, and placed in jail.

On Wednesday, November 12, 1969, between 8:00 and 9:00 A.M., Special Agent Bagley of the Federal Bureau of Investigation received a telephone call from the Deputy Sheriff of Cochise County, at Bowie, Arizona, informing him of the arrests and possible Dyer Act violations. Agent Bagley then sent a teletype to California to determine whether the vehicle in which the four arrested persons were riding had been reported as stolen. He received a report later in the day that it had been.

On Thursday, November 13, Agent Bagley travelled to the Cochise County Jail in Bisbee, Arizona to interview the four arrested persons, who had been transported there. During the interview, which began about 3:00 P.M. and lasted approximately 26 minutes, Halbert made the confession that the district court suppressed. The interviews with the other three suspects were completed shortly after 5:00 P.M.

On November 13, no complaint for a federal violation had been filed. The United States Attorney had requested that a determination be made as to whether the local officials in Los Angeles County, California, where the vehicle had been stolen, would prosecute. Agent Bagley had teletyped Los Angeles to make the determination. On his return from the Bisbee interview on November 13, he learned that the local authorities would not prosecute the arrested persons.

On Friday, November 14, Agent Bagley was assigned other nonroutine duties in Tucson and did nothing further on Halbert's case. On Saturday and Sunday, November 15 and 16, the United States Attorney's office was not open for business, and Agent Bagley did nothing further on Halbert's case.

On Monday, November 17, Agent Bagley sought and obtained a complaint from the United States Attorney in Tucson. The complaint was filed before the United States Commissioner in Tucson, and a warrant was obtained for Halbert's arrest.1 Agent Bagley placed Halbert under arrest in Bisbee at 3:15 P.M. and took him to Douglas where the appearance of Halbert before the United States Commissioner was made at 4:42 P.M. This appearance occurred four days after the interview with Agent Bagley and six days after Halbert was arrested by state authorities.

Thus in summary, we have a case where a confession was obtained by an FBI agent, from a state prisoner, within 48 hours of the state arrest. Four days later a federal charge was filed, and the defendant arrested and arraigned by federal officers.

Halbert moved to suppress the confession given in the interview on November 13 with Agent Bagley on the grounds that it was obtained in violation of (1) the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), (2) Rule 5 of the Federal Rules of Criminal Procedure and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), and (3) 18 U.S.C. § 3501.

The district court granted the motion. The district court found (1) that a proper Miranda warning had been given, (2) that the confession was voluntary under 18 U.S.C. § 3501(b), but (3) that the delay between the state arrest and the confession and delay in holding a committing hearing was not reasonable under 18 U.S.C. § 3501(c). The precise finding on the latter issue was:

"Not only was this confession not obtained within six hours of the arrest or detention, but the delay in holding defendant\'s committing hearing cannot be excused in the light of `the means of transportation and the distance to be traveled to the nearest such available magistrate or other officer.\'"
I.
The confession was voluntary, there was no collusive working agreement between State and Federal officers and the Miranda warning was given.

If the district court had not relied on 18 U.S.C. § 3501(c) discussed hereafter, the case would present no difficulty. Halbert's counsel conceded during the motion to suppress, that federal agents "are not to be affected by any illegality that's done or any failure by State people to take persons in custody before the city magistrate unless there's a working arrangement or some sort of understanding between the Federal and State authorities."

Other circuits have held that the period of state custody need not be taken into account unless there is "a collusive working agreement" between state and federal authorities for the purpose of delay in order to obtain an admission on confession. United States v. Chadwick, (10 Cir. 1969), 415 F.2d 167, states,

"Courts have, however, generally recognized an exception to the applicability of Rule 5(a) to arrested persons in state custody for the simple reason that such persons cannot be conveniently arraigned while in state custody * * * Interviews of persons in state custody by federal officers have been permitted and extrajudicial statements made during such interviews have been generally held admissible, provided, of course, they are otherwise constitutionally admissible * * * and provided also that the interviews and resulting confessions are not in pursuance of a collusive `working arrangement\' * * * between state and federal officers whereby the salutary purposes of Rule 5 are subtly circumvented." 415 F.2d at 170.

See Anderson v. United States (1943), 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829; Butterwood v. United States (10 Cir. 1966), 365 F.2d 380, cert. den. 386 U.S. 937, 87 S.Ct. 960, 17 L.Ed.2d 810; United States v. Coppola (2 Cir. 1960), 281 F.2d 340, aff'd per curiam 365 U.S. 762, 81 S.Ct. 884, 6 L.Ed.2d 79 (1961); Barnett v. United States (5 Cir. 1967), 384 F.2d 848; United States v. Hindmarsh (6 Cir. 1968), 389 F.2d 137, cert. den. 393 U.S. 866, 89 S.Ct. 150, 21 L.Ed.2d 134.2

Our Circuit in Cote v. United States (9 Cir. 1966), 357 F.2d 789, cert. denied 385 U.S. 883, 87 S.Ct. 173, 17 L.Ed.2d 110 (1966), reviewed the holdings of McNabb v. United States (1943), 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Upshaw v. United States (1948), 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100 and Mallory v. United States (1957), 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, and stated,

"In McNabb, * * * the Court held that admissions made by defendants after long and repeated questioning without taking the defendants before a United States Commissioner for arraignment were inadmissible.
"* * * In Upshaw v. United States, * * * the admissions were obtained during a period of detention where the sole purpose of delay in arraignment was to elicit incriminating information from the accused, and * * * in Mallory v. United States, * * * where without informing defendant of his rights a confession was obtained after a long period of questioning although during said period a magistrate was readily available." 357 F.2d at 792-793.

Our Circuit has held that the period of state custody can be considered in determining whether the confession or admission was voluntary. Smith v. United States (9 Cir. 1968), 390 F.2d 401 and Little v. United States (9 Cir. 1969), 417 F.2d 912. However, as stated in Smith, supra, "The determining factor is not the amount of time elapsing between arrest and confession, but rather the nature of police activities during this period." 390 F.2d at 403. Cote, supra, states "Nor is there any evidence in the record to indicate the primary purpose in detaining the appellant was to allow federal officers to interrogate him." 357 F.2d at 793-794.

The appellant produced no evidence of any collusive working agreement or that his confession resulted from any delay occurring after his arrest and prior to his appearance before the U. S. Commissioner, and produced no evidence to rebut the government's showing that the delay was reasonable and necessary. The burden of proving a violation of Rule 5(a), Fed.Rules Crim.Procedure is on the defendant. Little v. United States, supra, 417 F.2d at 914.

In his purported appeal, # 25,761, Halbert attempted to raise as his sole assignment of error in the district court's findings, that Miranda warnings were improperly given. Since the issue on the government's appeal is whether the court's findings and decision were correct, Halbert may raise this question under the appeal by the government. Not only were the oral statements by the FBI...

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