565 F.2d 585 (9th Cir. 1977), 76-3301, United States v. Indian Boy X

Docket Nº:76-3301.
Citation:565 F.2d 585
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. INDIAN BOY X, Defendant-Appellant.
Case Date:December 02, 1977
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 585

565 F.2d 585 (9th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,


INDIAN BOY X, Defendant-Appellant.

No. 76-3301.

United States Court of Appeals, Ninth Circuit

December 2, 1977

Page 586

Irwin H. Schwartz, Seattle, Wash., for defendant-appellant.

John C. Merkel, U. S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before CHAMBERS and MERRILL, Circuit Judges, and HOFFMAN [*], District Judge.

WALTER E. HOFFMAN, District Judge:

The major issue before us is whether the juvenile appellant's murder confession should have been suppressed due to noncompliance on the part of tribal police and Federal Bureau of Investigation (F.B.I.) agents with 18 U.S.C. § 5033, which requires the "forthwith" presentation of an arrested juvenile before a United States Magistrate. Appellant, Indian Boy "X," made a full confession of both an assault of

Page 587

one victim and a murder of another in an interview at an F.B.I. office in the State of Washington on Friday, May 14, 1976, five days after the incident. 1

The crimes were apparently nearly contemporaneous. The appellant admitted the assault to a tribal police chief at about noon on May 14. (Tr. 35). The second confession to the assault was made at about 2:15 p. m. the same day at the F.B.I. office. (Tr. 116-119). The murder confession followed at about 3:00 p. m. at the F.B.I. office. (Tr. 123). Appellant's parents were present at the time of waiver of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), rights, and at the time of the confessions. The appellant was not brought before a United States Magistrate until the following Monday, and now argues that this sequence of events violated his statutory right to a speedy arraignment. 2 18 U.S.C. § 5033. A pretrial motion to suppress the murder confession was heard and denied upon the court's finding that the authorities acted reasonably and appropriately. 3 A demand for jury trial, under the Juvenile Delinquency Act, was also denied. No issue has been raised as to the competency of "X" to stand trial. At the conclusion of a four-day trial (not continuous), the court declared the appellant to be a juvenile delinquent, based on findings that he committed acts that, if committed by an adult, would have amounted to a second degree murder and a separate assault with a dangerous weapon. (Tr. 126). After a study pursuant to 18 U.S.C. § 5037, the trial court committed "X" to the Attorney's General's custody until his twenty-first birthday. At the time of argument, we were told that the appellant is in custody at a mental hospital in Napa, California. We affirm.

The murder and assault occurred in the early morning hours of May 9, 1976. The setting was the scene of a party located on an Indian reservation in the State of Washington. The murder victim had been bludgeoned about the head and stabbed 108 times. The assault was committed with a hunting knife. The appellant was considered a suspect almost immediately. After several previous interviews on the reservation by Bureau of Indian Affairs police and the F.B.I., at each of which he denied committing either the murder or the assault, appellant "X" was visited at his family's home on the reservation on May 14 at about 11:45 a. m. by the chief of the tribal police, Smith. 4 Smith admittedly visited "X" to "see if ("X") would make a confession." (Tr. 84). "X" was not in custody at this time and the crimes were only under investigation. Smith, the appellant, and the appellant's mother then went into the boy's bedroom where Smith, in great detail, advised the boy of his Miranda rights, and explained each to him, using vocabulary a juvenile could understand. (Tr. 36-39).

After securing from both the boy and his mother assurances that they understood what he had told them, Smith asked "X" if he wished to talk to him. "X" nodded his head and said "yes". (Tr. 39). Smith proposed to tell them his theory of the crime,

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which was that "X" had seen Jones 5 kill Miss Brown 6 and had then attacked Jones in retaliation. (Tr. 39-40). The appellant's mother asked "X" if Smith's theory was correct. "X" said that it was correct, and proceeded to embellish the story while retaining its basic outline. (Tr. 40-43). At the conclusion of this interview, which took approximately fifteen minutes, Smith told "X" and his mother that he would have to take "X" down to the office of the F.B.I. and give "X" the opportunity to repeat his narrative of the events to them. 7 (Tr. 44). The nearest federal magistrate was forty-five minutes away from the site of this confession. Smith contacted the F.B.I., and after picking up the boy's father at the request of the appellant's mother, drove the family to the F.B.I. office, which was located in a nearby city.

After arriving at the F.B.I. office, appellant, his parents, and Smith were joined in a conference room with the tribal administrator, George Hill, 8 and two F.B.I. agents. "X" and his father were advised of the appellant's rights, and expressed understanding of such rights. (Tr. 51-55). Appellant's father asked if "X" could stop answering questions at any time, and was answered in the affirmative. (Tr. 89). Appellant and his father each signed a waiver form. (Tr. 88). Smith then asked appellant to repeat to the F.B.I. agents what appellant had earlier told Smith. (Tr. 54-55). After he had done so, the appellant was questioned by the F.B.I. agents as to what he had seen, and about further details surrounding the stabbing of Jones. (Tr. 58-60). At this point, the appellant's father asked the F.B.I. agents and Smith to leave the room. Remaining in the room were Hill, "X," and his parents. Hill then asked "X" if he had killed Miss Brown, to which the appellant did not reply. (Tr. 92.). The appellant then asked Hill what the F.B.I. laboratory analysis of his clothing would reveal. Hill explained that it could detect hair follicles and blood types. He then asked "X" if he was concerned that some of Miss Brown's blood type would be found on his clothing. "X" did not respond. The appellant's mother asked him if he had killed Miss Brown, and he replied that he had. (Tr. 93).

Appellant's father asked Hill about an attorney, and about what would happen at this point. Hill answered that a colleague was attempting to reach the Public Defender's office in the local town to arrange for an attorney. Hill was careful in explaining to "X" and his parents that they had the option of continuing the confession to the F.B.I. agents and Smith, or not saying anything at all until an attorney arrived. (Tr. 94).

At the conclusion of this conference, Hill asked the law enforcement officers to reenter the room. He told them nothing about the confession. The F.B.I. agent who had been conducting the interrogation told the group that the agents were at a point of obtaining a confession or releasing "X." 9 Appellant's father then advised the group

Page 589

that they did not wish to say anything until an attorney arrived. (Tr. 96). There was then a discussion between the appellant's parents, and they asked Hill if they should say something to the police. Hill again explained that they did not have to say anything. The parents again conferred, and agreed that "X" should tell what he knew. At this point one of the F.B.I. agents asked "X" if he had killed Miss Brown, and he said that he had. (Tr. 96).

The question of the motive for the murder remained. Believing that the motive was sex, and that "X" would be reluctant to discuss the topic in the presence of his parents, the law enforcement officers agreed that only Hill and Chief Smith would remain in the room to question "X." As his parents left, they told "X" that they wanted him to go ahead and talk. (Tr. 103). That he did, confirming the suspicion that sex was the motive. The statements made by "X" were then reduced to writing and signed.

Chief of Tribal Police Smith took "X" to a county juvenile home at approximately 4:15 p. m. that afternoon. (Tr. 69). The boy was finally brought before a magistrate the following Monday afternoon, May 17. 10 There was no further questioning by law enforcement authorities.

At trial, the F.B.I. agents and Smith related the details of the boy's statements. Although Hill testified at the preliminary hearing on the motion to suppress the murder confession, neither he nor "X" testified at the trial as to the statements.

I. The Admissibility of the Murder Confession

The appellant contends that his murder confession should have been suppressed because it was illegally obtained. He contends that 18 U.S.C. § 5033 required police officials to immediately produce him before a magistrate after arrest. The statute reads:

Whenever a juvenile is taken into custody for an alleged act of juvenile delinquency, the arresting officer shall immediately advise such juvenile of his legal rights, in language comprehensive to a juvenile, and shall immediately notify the Attorney General and the juvenile's parents, guardian, or custodian of such custody. The arresting officer shall also notify the parents, guardian, or custodian of the rights of the juvenile and of the nature of the alleged offense.

The juvenile shall be taken before a magistrate forthwith. In no event shall the juvenile be detained for longer than a reasonable period of time before being brought before a magistrate.

There is no case law as yet reported on this statute, although there are a few reported cases on its predecessor statute, 18 U.S.C. § 5035. The predecessor statute reads, as relevant:

Whenever a juvenile is arrested for an alleged violation of any law of the United States, the arresting officer shall immediately notify the Attorney General.

If the juvenile is not forthwith taken before a committing magistrate, he may be detained in such juvenile home . . . to...

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