Sciberras v. United States, 9335

• Decision Date: 06 July 1967
• Docket Number: 9336.,No. 9335,9335
• Citation: 380 F.2d 732
• Parties: Robert Emanuel SCIBERRAS, Appellant, v. UNITED STATES of America, Appellee (two cases).
• Court: U.S. Court of Appeals — Tenth Circuit

380 F.2d 732 (1967)

Robert Emanuel SCIBERRAS, Appellant, v. UNITED STATES of America, Appellee (two cases).

Nos. 9335, 9336.

United States Court of Appeals Tenth Circuit.

July 6, 1967.

Robert C. McCain, Denver, Colo. (W. Robert Awenius, Lakewood, Colo., with him on brief), for appellant.

Leroy V. Amen, Asst. U. S. Atty., Cheyenne, Wyo. (Robert N. Chaffin, U. S., Atty., Cheyenne, Wyo., with him on brief), for appellee.

Before LEWIS, HILL and HICKEY, Circuit Judges.

HICKEY, Circuit Judge.

In Case No. 9336 the accused, appellant herein, was convicted by a jury in the United States District Court for the District of Wyoming for the interstate transportation of a stolen motor vehicle in violation of 18 U.S.C. § 2312. In Case No. 9335 appellant was charged with the possession of a Selective Service Registration Certificate, not duly issued to appellant, and with the intention that it be used for the purpose of false identification or representation, in violation of 50 App. U.S.C. § 462. When appellant appeared before the court for sentencing in No. 9336 he changed his plea in No. 9335 to guilty and the sentences were imposed to run concurrently.

The burden of the argument on appeal directs itself to a violation of Fed.R.Crim.P. 5(a) wherein it is commanded to arraign "without unnecessary delay." Appellant was apprehended in Evanston, Wyoming, on the evening of August 24, 1966, under authority of a teletype message received by the Sheriff of Green River, Wyoming, from the State of New York. The defendant was transported from Evanston, Wyoming, to the jail in Green River, Wyoming, for confinement. On the following day, August 25, 1966, two of the four co-defendants were interrogated by an agent of the Federal Bureau of Investigation. On the following day, August 26, 1966, the third co-defendant and appellant were interrogated by the same agent. The next two days, August 27 and 28, were Saturday and Sunday. No interrogations or other activity of any kind is claimed to have taken place on those two days. On Monday morning, August 29, defendant was taken before a Commissioner and arraigned on the charges hereinabove described.

The rule acknowledged in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) recognizes the rule in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), wherein the court stated that in view of the adoption by Congress of Federal Criminal Procedure Rule 5(a) requiring commitment "without unnecessary delay" it had little occasion in dealing wih federal police interrogations in the past quarter century to reach the constitutional issues.

This court, speaking through Chief Judge Murrah, recently said, "The command in 5(a) to arraign `"without unnecessary delay" * * * does not call for mechanical or automatic obedience'. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479." Nez v. United States, 365 F.2d 286, 288 (10th Cir. 1966). We have also said that "Rule 5(a) is meant to prevent unnecessary delay during which time arresting officers may seek to elicit confessions, or marshal evidence for presentation." Gregory v. United States of America, 364 F.2d 210, 213 (10th Cir. 1966).

We cannot say that the evidence justifies consideration of the issue in view of the Supreme Court's effectuation of the rule and this court's recognition of the prejudice against which it seeks to protect, or protection of the rights of the individual which it seeks to establish. We, therefore, affirm the trial court in No. 9336.

The appellant also argues that his rights were violated in that he was not fully advised of his right to court appointed counsel when he was first placed under arrest. The testimony of State Patrolman Woodward indicates that the only information solicited or received from the appellant prior to his being advised of his constitutional rights was ...