U.S. v. Gaines

• Decision Date: 16 May 1977
• Docket Number: No. 76-1885,76-1885
• Citation: 555 F.2d 618
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Rufus GAINES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 618

555 F.2d 618

UNITED STATES of America, Plaintiff-Appellant, v. Rufus GAINES, Defendant-Appellee.

No. 76-1885.

United States Court of Appeals Seventh Circuit.

Argued April 13, 1977.

Decided May 16, 1977.

Richard L. Kieser, U. S. Atty., South Bend, Ind., for plaintiff-appellant.

Ronald F. Layer, Hammond, Ind., Gerald Y. Sakaguchi, South Bend, Ind., for defendant-appellee.

Before CUMMINGS and PELL, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

PELL, Circuit Judge.

This is an appeal by the Government under 18 U.S.C. § 3731 from an order of the district court granting defendant-appellee's motion to suppress evidence of a confession. After hearing evidence on the motion, the trial court found that Gaines' oral statements on March 10, 1972, were voluntarily made, but ordered suppression because the defendant at the time of the statements had been in custody for approximately forty-six (46) hours on an unrelated state charge and had not been taken before a judicial officer. The essential question on this appeal is whether the district court judge correctly concluded that it was his duty to suppress the confession. ¹

I. Background

Defendant-appellee Rufus Gaines was indicted on June 14, 1972, along with two other men, Alexander English and Sam Hubbard, for the robbery of an armored car and the murder of its driver. After an initial mistrial, all three defendants were found guilty. On direct appeal, the convictions were affirmed. United States v. English, 501 F.2d 1254 (7th Cir. 1974), cert denied sub nom. Hubbard v. United States, 419 U.S. 1114, 95 S.Ct. 791, 42 L.Ed.2d 811 (1975). Subsequently, Gaines filed a motion to vacate sentence, which was denied and appealed to this court. In United States v. Gaines, 529 F.2d 1038 (7th Cir. 1976), this court ordered a new trial.

After the appointment of new defense counsel, Gaines filed a new motion to suppress, contending, inter alia, that he was not in a sufficiently stable physical or mental condition to understand his constitutional rights or to choose to utilize the protection said rights afforded, that his rights to be brought before a magistrate pursuant to federal and Indiana laws were violated, and that his oral statements should be presumed to be involuntary because of the denial of his constitutional rights and his statutory right under 18 U.S.C. § 3501. ²

The district court judge recognized that the case had been before this court on two occasions. He determined that it was preferable to hear the evidence afresh on the suppression motion, inasmuch as it was arguable that the conflict-position in which Gaines' earlier counsel had placed himself might have affected his performance on the earlier motion to suppress. Subsequently, the trial court determined that the question of delay between Gaines' arrest and his appearance before the federal magistrate was a new and fresh issue.

Testimony adduced during three days of hearings established that Gaines had been incarcerated in the Gary City Jail by the Gary City Police on March 8, 1972. His jail classification card stated that Gaines was being held for investigation ("H4I"), and the police arrest sheet carried the notations "Do not release" and "to hold for F.B.I., Agent Whitaker." Moreover, the court calendar indicated that on all three days of Gaines' incarceration in Gary City Jail court was in session, so that it was possible for the police to prefer charges against Gaines for theft and shoplifting, which state offenses were the ostensible reason for his arrest.

The defendant-appellee attempted to establish that there was a "working arrangement" between the FBI and the Gary Police Department. Special Agent Allen Whitaker testified that prior to Gaines' arrest for shoplifting, he had discussed Gaines with Gary police officers, specifically Cobie Howard and Symeon Colquitt. The latter officer testified that he was looking for Gaines and that he knew that the FBI wanted to talk to him about the South Bend robbery and murder. Howard also testified that he knew that Whitaker wanted to talk to Gaines about the robbery. Both men admitted that they called the Gary FBI office shortly after Gaines was brought to the jail on the morning of March 8. Moreover, Whitaker testified that he had daily contact with individuals in the police department and that there was "a continuing, on-going inquiry" relating to the armored car robbery and murder.

Much of the testimony at the hearings was directed at Gaines' physical and mental condition. After examining all the testimony, the trial judge was able to find that Gaines had his addiction problem under control and gave his March 1972 statements voluntarily. The judge's determinations regarding the issue of an illegal detention and an unreasonable delay in taking Gaines before a magistrate ³ were not so clear. The trial judge made no finding that there was a "working arrangement" between the FBI agents and the Gary police officers. However, the judge did conclude that the federal law enforcement officers were bound by the time that the defendant Gaines was in custody. Thus, while recognizing that Gaines was taken almost immediately to a magistrate after federal custody commenced, the trial judge expressed the view that this fact was of no avail to the Government on the issue of unreasonable delay. ⁴ Beyond referring to a number of cases, which are discussed hereinafter, the trial judge elucidated no basis for his conclusion that the Government was "bound" by the original state custody.

II. Delayed Presentment before Available Magistrate

A confession obtained prior to taking the accused before a magistrate or commissioner but after unnecessary delay in so taking him is inadmissible. This basic rule is defined by Rule 5(a), Fed.R.Crim.P., ⁵ and by such Supreme Court decisions as 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). In Mallory, the Supreme Court referred to Rule 5(a)'s requirement that appearance before a commissioner be "without unnecessary delay" as a compendious restatement of prior specific statutory provisions. 354 U.S. at 452, 77 S.Ct. 1356. Congress attempted to make drastic inroads on the McNabb-Mallory rule through the enactment of 18 U.S.C. § 3501. See 1 C. Wright, Federal Practice and Procedure § 72, at 73 (1969 ed.).

In United States v. Broadhead, 413 F.2d 1351, 1354-60 (7th Cir. 1969), cert. denied, 396 U.S. 1017, 90 S. Ct. 581, 24 L.Ed.2d 508, this court examined the policy behind McNabb, Mallory, and Rule 5. We recognized that Rule 5 is ordinarily applicable only to federal arrests and detentions but observed that its requirement would apply in situations wherein "a 'working arrangement' is clearly shown." Broadhead, supra at 1359. In that case, we found a cooperative situation between local Michigan police and FBI agents which was virtually indistinguishable from that in Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829 (1943), where the Supreme Court applied McNabb to hold inadmissible confessions obtained while prisoners were in nominal Tennessee custody but were, in fact, Federal prisoners. Id. at 1358.

However, to our knowledge, no court has ever determined that a "bare suspicion" of a working arrangement between federal and local authorities is sufficient to make Rule 5(a) protections or a McNabb-Mallory argument available. See Jarrett v. United States, 423 F.2d 966, 971 (8th Cir. 1970). Impliedly, at the very least, we have required a defendant to establish that a delay "was deliberately induced for the express purpose of producing evidence." United States v. Hamilton, 409 F.2d 404, 406 (7th Cir. 1969).

More recently, in United States v. Davis, 532 F.2d 22, 25 (7th Cir. 1976), this court recognized that "Rule 5(a) must be read together with 18 U.S.C. § 3501(c) . . . (regarding) the issue . . . concerning the delay between the time of defendant's arrest and his initial appearance before a magistrate." Until the time of Davis, we had no occasion to examine fully the interaction between the statutory provision and the strictures of Rule 5(a). Similarly, we had no occasion to discuss the matter in our recent decision of United States v. Medina, 552 F.2d 181 (7th Cir. 1977), which raised a voluntariness issue quite similar to the one presented in this case. Thus, the district court's suppression order was entered without any express judicial guidance from this court.

The courts which have construed 18 U.S.C. § 3501(c) have generally concluded that a delay longer than six hours does not itself render a confession inadmissible. See, e. g., United States v. Shoemaker, 542 F.2d 561, 563 (10th Cir. 1976), cert. denied, 429 U.S. 1004, 97 S.Ct. 537, 50 L.Ed.2d 616 (1976); United States v. Edwards, 539 F.2d 689, 691 (9th Cir. 1976), cert. denied, 429 U.S. 984, 97 S.Ct. 501, 50 L.Ed. 2d 594; United States v. Bear Killer, 534 F.2d 1253, 1256-57 (8th Cir. 1976), cert. denied, 429 U.S. 846, 97 S.Ct. 129, 50 L.Ed.2d 118; United States v. Crocker, 510 F.2d 1129, 1138 (10th Cir. 1975); United States v. Mandley, 502 F.2d 1103, 1105 (9th Cir. 1974); United States v. Hathorn, 451 F.2d 1337, 1340-41 (5th Cir. 1971); and United States v. Halbert, 436 F.2d 1226, 1229-37 (9th Cir. 1970). Thus, the aforementioned decisions support the proposition that if a delay longer than six hours occurs it is merely another factor to be considered by the trial judge in determining voluntariness. Hathorn, supra at 1341. The legislative history of § 3501 as explored in detail in Halbert, supra, is persuasive that Congress certainly did not intend to broaden the protection afforded under McNabb-Mallory. Accord, United States v. Marrero, 450 F.2d 373, 377 (2d Cir. 1971), cert. denied, 405 U.S. 933, 92 S.Ct. 991, 30 L.Ed.2d 808 (1972).

In his effort to persuade the trial judge that suppression was required, the defendant-appellee...