Holt v. United States

• Decision Date: 13 July 1960
• Docket Number: No. 16372.,16372.
• Citation: 280 F.2d 273
• Parties: Judson E. HOLT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

280 F.2d 273 (1960)

Judson E. HOLT, Appellant, v. UNITED STATES of America, Appellee.

No. 16372.

United States Court of Appeals Eighth Circuit.

July 13, 1960.

James A. Greenblatt, St. Louis, Mo., filed brief and made argument for appellant.

John A. Newton, Asst. U. S. Atty., St. Louis, Mo., made argument for appellee. William H. Webster, U. S. Atty., St. Louis, Mo., was with John A. Newton, St. Louis, Mo., on the brief, for appellee.

Before GARDNER, WOODROUGH and VOGEL, Circuit Judges.

GARDNER, Circuit Judge.

Appellant, whom we shall hereafter refer to as defendant, was duly charged, tried and convicted on an information of four counts charging violations of certain provisions of the Narcotic Act; to wit, Section 4741(a) and Section 4742 (a), Title 26 U.S.C. During the trial he was represented by counsel of his own choice. From the judgment and sentence entered pursuant to a verdict of guilty defendant appealed to this court on various grounds. We reversed the conviction and granted a new trial on the sole ground that the court erred in sustaining an objection to the argument of counsel for defendant on the ground that counsel had misstated certain pertinent testimony. In sustaining the objection of the government the court specifically instructed the jury that the statement which defendant's counsel had made was erroneous and thereupon instructed the jury, misstating the testimony of the witness. Holt v. United States, 8 Cir., 267 F.2d 497. On retrial defendant was again convicted by the jury and he prosecutes this second appeal from the judgment of conviction on the ground that the court erred in admitting testimony as to his oral confession because the confession was involuntarily made during a period of illegal detention.

It was within the province of the trial court to decide whether or not the confession of the defendant was voluntary. In deciding this question the court was the judge of the credibility of the witnesses and the weight to be given to their testimony. Green v. United States, C.A.D.C., 259 F.2d 180. There was more or less conflict in the testimony but the court resolved the conflict in favor of the government. From the testimony the court could reasonably have found: the defendant was arrested by narcotic agents and a police officer about 1:30 p. m. on Sunday, November 17, 1957, and was taken to the Twelfth District police station and placed in a cell. From that time until about four that afternoon all the narcotic agents in the St. Louis office were engaged in locating, arresting and booking two other narcotic violators. Between four and five p. m. two narcotic agents and the police officer met the defendant at the police station and interviewed him. He was asked about the sale of marihuana to Henry Marina, the special employee, and he denied making it. He was then asked if he knew a certain Eunice Byrth and he denied this. He was then shown a telegram addressed to Byrth which had been taken from him at the time of his arrest and he admitted making the sale to Marina and said that he had acquired the marihuana from Eunice Byrth. This whole interview lasted from thirty to forty-five minutes. The defendant appeared somewhat nervous but there were no signs of sickness. He was not mistreated, nor were there any threats or promises made to him.

In Green v. United States, supra 259 F.2d 182, the court, in considering the sufficiency of the evidence to warrant it to determine that defendant's confession was voluntary, said inter alia:

"Although appellant, in the absence of the jury, testified in support of his motion, the District Judge was entitled to credit the officers\' testimony where it conflicted with that offered by the appellant."

It is urged that defendant's confession was secured from him following his arrest and after unreasonable delay in taking him before the United States Commissioner. In support of this contention defendant cites and relies on Rule 5(a) of the Federal Rules of Criminal Procedure, 18 U.S.C., McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L. Ed. 819, and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. Rule 5(a) of the Federal Rules of Criminal Procedure provides that a person must be taken before a Commissioner "without unnecessary delay" after his arrest. No hard and fast rule can govern as to what constitutes unnecessary delay and each case must be determined on its own facts and circumstances. Williams v. United States, 9 Cir., 273 F.2d 781. In the instant case it appears from the record that from about 1:30 p. m. on the afternoon of defendant's arrest, when...