United States v. Keeble, 71-1529.

• Decision Date: 11 April 1972
• Docket Number: No. 71-1529.,71-1529.
• Citation: 459 F.2d 757
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francis A. KEEBLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

459 F.2d 757 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Francis A. KEEBLE, Defendant-Appellant.

No. 71-1529.

United States Court of Appeals, Eighth Circuit.

Submitted February 17, 1972.

Decided April 11, 1972.

Supplemental Opinion July 28, 1972.

Mark V. Meierhenry, Rosebud, S. D., for defendant-appellant.

Richard D. Hurd, Asst. U. S. Atty., William F. Clayton, U. S. Atty., Sioux Falls, S. D., for plaintiff-appellee.

Before BREITENSTEIN,^* BRIGHT, and STEPHENSON, Circuit Judges.

BREITENSTEIN, Circuit Judge.

Defendant-appellant Keeble was found guilty by a jury of assault on one Pomani with intent to commit great bodily injury, in violation of 18 U.S.C. § 1153 and S.D.C.L. § 22-18-12. He was sentenced to five years imprisonment. Defendant and Pomani were both Indians. The assault took place on an Indian reservation in South Dakota.

On March 6, 1971, defendant and Pomani had spent some time drinking and had gone to defendant's home on the reservation. A fight between them ensued. When defendant went to bed, Pomani was in the house and conscious. When defendant awakened, Pomani was not in the house and his body was found outside. Defendant and his wife reported the incident to Captain Cruse, an employee of the Bureau of Indian Affairs and a police officer at the reservation. A post-mortem revealed that Pomani died of exposure.

The first question raised is the admission in evidence of defendant's confession. The surrounding circumstances are these. After defendant reported the incident, Captain Cruse arrested him for disorderly conduct, a tribal offense, about 8:30 A.M., March 7, and gave a Miranda warning. Questioning was not pursued because of defendant's intoxicated condition and nothing pertaining thereto was received in evidence at the trial. At about 10:30 A.M. Cruse called Agent Breci of the Federal Bureau of Investigation and reported Pomani's death. Agent Breci arrived from Sioux Falls, South Dakota, approximately 160 miles away, about noon on March 8. After giving a Miranda warning, the agent interrogated defendant for about three hours and received a written statement which incriminated defendant in the beating of Pomani.

On March 9, defendant was brought before the Tribal Court and pleaded guilty to the tribal offense. On the same day Breci swore to a complaint charging defendant with a federal offense. Defendant was brought before a magistrate on March 11. A motion to suppress the statement given to the FBI agent was denied and the statement was received in evidence.

A period of about 99 hours elapsed between defendant's arrest and his appearance before the magistrate. Rule 5(a), F.R.Crim.P., requires an arresting officer to "take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States." Defendant argues that 99 hours does not satisfy the "unnecessary delay" requirement and requires the suppression of the statement.

If the time of the arrest be taken as that when Captain Cruse had probable cause to hold defendant for a federal offense, about 25½ hours elapsed before the beginning of the FBI interrogation and about 28½ hours before the completion of the defendant's written statement. About 70 hours later, he was taken before a magistrate. The delay was apparently ignored by the trial judge who, so far as we can ascertain from the record, based his denial of the motion to suppress on the ground that the statement was voluntarily given after a sufficient Miranda warning.

We must determine whether the defendant's waiver of Miranda rights obviates compliance with Rule 5(a) and the requirements of 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. In Miranda v. Arizona, 384 U.S. 436, 463, n. 32, 86 S.Ct. 1602, 16 L.Ed.2d 694, the Supreme Court said that its decision therein does not indicate that the McNabb-Mallory rules "can be disregarded." We agree with Frazier v. United States, 136 U.S.App.D.C. 180, 419 F.2d 1161, 1166, n. 25, that Mallory does not require exclusion of an otherwise admissible statement because of brief delay in obtaining a Miranda waiver. The same principle was followed in O'Neal v. United States, 5 Cir., 411 F.2d 131, cert. denied, 396 U.S. 827, 90 S.Ct. 72, 24 L.Ed.2d 77, and Pettyjohn v. United States, 136 U.S.App.D.C. 69, 419 F.2d 651, in each of which there was a short interval between the arrest and the statement. That is not the case here and the Miranda warning did not cure the delay in taking the defendant before a magistrate.

Rule 5(a) applies only to persons arrested and held under federal law. United States v. Elliott, 8 Cir., 435 F.2d 1013, 1015. The Government says that defendant was arrested for disorderly conduct, a tribal and not federal offense, and that at the time of the FBI interrogation he was being lawfully held for the tribal offense. The arresting officer, Captain Cruse, was a federal employee working for the Bureau of Indian Affairs. Decisions considering federal interrogation of a suspect lawfully in state custody are not pertinent because here defendant at all times was in federal custody.

Cruse made the arrest under the Code of Indian Tribal Offenses, 25 C.F.R. § 11.49. The government urges that Rule 5(a) is inapplicable because the FBI interrogation occurred while defendant was under lawful detention for the tribal offense. See 25 C.F.R. § 11.17. In spite of the arrest for the tribal offense, we believe that no later than 10:30 A.M. on the 7th Cruse had probable cause to arrest defendant for violation of 18 U. S.C. § 1153, and at that time the arrest also became one for probable violation of that section. It is irrelevant whether Cruse made a specific statement to that effect. Brown v. United States, 125 U. S.App.D.C. 43, 365 F.2d 976, 979.

The statement was obtained by an FBI agent who had 15 years experience in working with Indians. We are convinced that the Miranda warning was fully, fairly, and adequately given and that the execution of the waiver by the defendant was given knowingly and voluntarily. Our concern is the effect of the delay of more than one day between the arrest and the statement and of almost three days between the statement and the appearance before the magistrate.

This brings us to the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 197. Title II thereof, 18 U.S.C. § 3501, relates to the admissibility of confessions. Subsection (a) says that confessions are admissible if voluntarily given; that the judge, out of the presence of the jury, shall determine voluntariness; and that if voluntariness is found the statement may be received in evidence and considered by the jury under appropriate conditions and instructions.

Subsection (b) provides that in determining voluntariness, the judge shall take into consideration "all the circumstances surrounding the giving of the confession" including five specified items, one of which is the time lapse between arrest and the arraignment if the confession was made between them. The statute says that the presence or absence of any of the enumerated factors "need not be conclusive on the issue of voluntariness of the confession."

Subsection (c) says that a confession is not made inadmissible solely because of delay in bringing the accused before a magistrate if (1) the trial judge finds that the confession was voluntary, (2) the weight to be given the confession is left to the jury, and (3) the confession was made "within six hours immediately following his arrest or other detention" with this proviso:

"That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate or other officer beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate or other officer."

In the case at bar, the submission of the confession to the jury satisfied the requirements of subsection (a). Likewise, the factors mentioned in subsection (b), with the exception of the time lapse between arrest and confession, were considered by the trial judge in his determination that a proper Miranda warning had been given. The trial judge did not comply with the proviso of subsection (c).

The defendant makes no attack on the constitutionality of § 3501 and we proceed on the basis that it is constitutional. The pertinent legislative history is given in United States v. Halbert, 9 Cir., 436 F.2d 1226, 1233-1236, and need not be repeated here. In Halbert there was more than a six-hour delay between arrest by state officers and confession to a federal agent. The trial court suppressed the confession because the delay was beyond that permitted by § 3501(c). On the government's appeal, the Court of Appeals reversed. It said (Ibid. at 1231):

"* * * it is obvious that the prime purpose of Congress in the enactment of § 3501 was to ameliorate the effect of the decision in Mallory v. United States * * *, to remove delay alone as a cause for rejecting admission into evidence of a confession and to make the voluntary character of the confession, the real test of its admissibility."

The court held that a delay of more than six hours before confession was a factor to be taken into consideration; that the confession was voluntary; that the delay after the confession was not pertinent; and that the trial court erred in suppressing the confession solely because of the delay. Ibid. at 1237.

Unlike Halbert our situation is not the exclusion of a confession for the sole reason of a greater than six-hour delay. Rather, our problem is the admission of the confession without any consideration of the delay factor.

More pertinent is this circuit's decision in ...