U.S. v. Barlow

• Decision Date: 24 November 1982
• Docket Number: No. 81-1331,81-1331
• Citation: 693 F.2d 954
• Parties: 11 Fed. R. Evid. Serv. 1720 UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey A. BARLOW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 954

693 F.2d 954

11 Fed. R. Evid. Serv. 1720

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey A. BARLOW, Defendant-Appellant.

No. 81-1331.

United States Court of Appeals Sixth Circuit.

Argued April 27, 1982.

Decided Nov. 24, 1982.

William L. Woodard, Deputy Defender, Kenneth R. Sasse, Detroit, Mich., for defendant-appellant.

Richard A. Rossman, U.S. Atty., Joseph E. Papelian, Asst. U.S. Atty., Detroit, Mich., for plaintiff-appellee.

Before KEITH and KRUPANSKY, Circuit Judges, and MILES, ^* Chief District Judge.

MILES, Chief District Judge.

Jeffrey A. Barlow appeals his conviction for participating in a conspiracy to steal fur garments from an interstate shipment and for committing the substantive offense stemming from the conspiracy. 18 U.S.C. Secs. 371, 659 (1976). The issues on appeal are: (1) whether the district court erred in refusing to suppress the appellant's alibi which he gave while allegedly detained illegally by local authorities, (2) whether the trial court abused its discretion in denying the appellant's motion for a mistrial after a voir dire question showed juror knowledge of pretrial publicity, (3) whether the district court violated appellant Barlow's right to confrontation or abused its discretion in admitting, under Rule 804(b)(5) of the Federal Rules of Evidence, grand jury testimony of appellant's wife who asserted her privilege not to testify against her husband, and (4) whether the district court abused its discretion in denying Barlow's motion for a new trial which was based on a co-defendant's post-conviction letter indicating Barlow's innocence. For the reasons set out below we affirm the appellant's conviction.

FACTS

In the early morning hours of August 9, 1980, Lewis Williams, with the assistance of the appellant, stole a van belonging to the Detroit Fur Storage and Cleaning Company (Detroit Fur) and containing fur garments worth over one million dollars. Williams drove the van to where a truck, which he had rented the day before, was parked. The appellant and Williams unloaded the furs from the stolen van into the rental truck. They then drove to meet Iantha Humphries, the appellant's girl friend at the time and the woman whom he married before trial. All three later went to the home of Gaynell Humphries, sister of Iantha, where they unloaded the stolen garments.

That evening, around 11:30 p.m., Detroit police officers arrested appellant Barlow, who was sitting in the empty rental truck, in connection with the fur theft. In the meantime, the president of Detroit Fur had contacted the Federal Bureau of Investigation (FBI) after receiving a report that a truck had been stolen. An FBI agent followed up this information by inquiring with the Detroit Police Department. The police told the agent that appellant Barlow had been arrested on a state charge of grand larceny; however, they did not permit the FBI to interview the subject until the following morning, Sunday, August 10. During their independent investigations the FBI and the Detroit police had agreed to exchange information on the case. Barlow remained in the custody of local authorities until the morning of August 11 when he was turned over to the FBI. On the same day he appeared before a United States Magistrate.

When the FBI interviewed the appellant while he was still in police custody he waived his Miranda rights and gave a statement. Later the same day two other agents also interrogated Barlow. During one of the interviews the appellant stated three times that he had been with Iantha Humphries, his girl friend, at the time of the theft. He claimed to have been with her from August 8 at 11:30 p.m. to the next morning, August 9 at 8:00 a.m. Iantha Humphries' grand jury testimony, however, revealed that she had not seen the appellant after 11:30 p.m., August 8, until he and Williams knocked at her door approximately three and a half hours later. She also stated that she observed that they had driven the rental truck. The government was permitted to introduce the grand jury testimony against Barlow at trial under Rule 804(b)(5) of the Federal Rules of Evidence. Humphries had married the appellant before trial and exercised her privilege not to testify against her spouse which, the trial court ruled, made her "unavailable" within the meaning of the Rule.

Barlow and Williams were tried together; however, two juries were drawn. One heard Williams' case during which Iantha Humphries testified; the other heard Barlow's case without her testimony. During jury selection, in response to a question by the court, one juror noted the publicity which the case had received and inquired whether one of the defendants had married someone who was going to testify against him. The trial judge responded that there "was something about that in the paper." After he excused those who expressed some bias on account of the publicity, including the juror who knew that a witness had married a defendant, the judge interviewed in chambers the remaining members of the panel who were familiar with the publicity. After questioning those 27 individuals the court excused two on the basis of their responses.

After trial appellant Barlow moved for a new trial on the basis of a letter which co-defendant Williams, who had not cooperated with Barlow's defense, wrote to Iantha Humphries stating that Barlow took no part in the crime. The court denied this motion.

I.

While in the custody of the Detroit police the appellant consented to an interview with the FBI after being given his Miranda rights. In this interview he offered an alibi which conflicted with his girl friend's grand jury testimony. The government, permitted to use both the appellant's statement and the grand jury testimony at trial, sought to rebut the appellant's alibi and demonstrate his consciousness of a weak case. Barlow contends that his statement should have been excluded because it was given while he was detained in violation of Rule 5(a) of the Federal Rules of Criminal Procedure. ¹

Rule 5(a) requires that an arresting officer take the arrested person before a federal magistrate "without unnecessary delay." ² Failure to comply with this requirement renders inadmissible statements obtained from an accused prior to his appearance before a magistrate. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). For the purposes of Rule 5(a) delay is measured from the time custody by federal authorities commences. United States v. Davis, 459 F.2d 167, 170 (6th Cir.1972). The same principle ordinarily applies when a suspect is first taken into custody by local or state police and subsequently turned over to federal authorities. When, however, federal and state officials have a working arrangement to elicit information from an accused before taking him before a magistrate, delay is measured from the time state custody commences. United States v. Woods, 613 F.2d 629, 633 (6th Cir.) (quoting United States v. Davis, 459 F.2d at 170), cert. denied, 446 U.S. 920, 100 S.Ct. 1856, 64 L.Ed.2d 275 (1980); see Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829 (1942). The appellant argues that this exception is applicable to this case. We disagree.

This court has considered this particular issue on several occasions. United States v. Woods, 613 F.2d at 633; United States v. Davis, 459 F.2d at 170; United States v. Rose, 415 F.2d 742, 743 (6th Cir.) (per curiam), cert. denied, 396 U.S. 971, 90 S.Ct. 458, 24 L.Ed.2d 438 (1969); United States v. Hindmarsh, 389 F.2d 137, 146 (6th Cir.), cert. denied, 393 U.S. 866, 89 S.Ct. 150, 21 L.Ed.2d 134 (1968); United States v. Sailer, 309 F.2d 541 (6th Cir.1962) (per curiam), cert. denied, 374 U.S. 835, 83 S.Ct. 1884, 10 L.Ed.2d 1057 (1963). In Woods, for example, the appellant had been arrested by local police for state charges and detained eight days at which time the FBI interviewed him. In the interview he made certain incriminating remarks which the government was allowed to introduce at trial. This court found "no evidence which indicate[d] that the [federal-state] relationship was 'illegitimate,' or that 'the state officials unlawfully detained [Woods] in order to allow the federal investigator to secure a confession.' " 613 F.2d at 633 (quoting United States v. Rollerson, 491 F.2d 1209, 1212 (5th Cir.1974)).

Other courts have expressed this same requirement in slightly different terms. United States v. Torres, 663 F.2d 1019, 1024 (10th Cir.1981) (state custody must be "used in order to circumvent Rule 5(a)"), cert. denied, --- U.S. ----, 102 S.Ct. 2237, 72 L.Ed.2d 847 (1982); United States v. Gaines, 555 F.2d 618, 622 (7th Cir.1977) (delay must be "deliberately induced for the express purpose of producing evidence"); United States v. Halbert, 436 F.2d 1226, 1229 (9th Cir.1970) ("state custody need not be taken into account unless there is a 'collusive working agreement' between state and federal authorities"). We reaffirm our previous holdings. For the purposes of Rule 5(a) the time which a defendant spends in state custody will not be attributable to federal detention in the absence of some working relationship between state and federal law enforcement personnel. This collaborative effort must be specifically designed to circumvent the requirements of Rule 5(a), that is, designed to produce evidence which would not be admissible if the defendant were in federal custody the entire time. See, e.g., United States v. Broadhead, 413 F.2d 1351, 1358 (7th Cir.1969) (at FBI's request police erected roadblock, arrested defendant, and provided the jail to detain him and conduct a line-up), cert. denied, 396 U.S. 1017, 90 S.Ct. 581, 24 L.Ed.2d 508 (1970).

In the instant case there is no indication that such a collaborative arrangement existed. The police and FBI were conducting legitimate independent investigations. The FBI's...