United States v. Ladson

• Decision Date: 06 September 1961
• Docket Number: No. 372,Docket 25895.,372
• Citation: 294 F.2d 535
• Parties: UNITED STATES of America, Appellee, v. Arthur William LADSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

294 F.2d 535 (1961)

UNITED STATES of America, Appellee, v. Arthur William LADSON, Defendant-Appellant.

No. 372, Docket 25895.

United States Court of Appeals Second Circuit.

Argued May 3, 1961.

Decided September 6, 1961.

James McKinley Rose, Jr., Asst. U. S. Atty., Southern District of New York, New York City (Robert M. Morgenthau, U. S. Atty., and Gerald Walpin, Asst. U. S. Atty., New York City, on the brief), for appellee.

L. Howard Payne, New York City (Anthony F. Marra, New York City, on the brief), for defendant-appellant.

Before LUMBARD, Chief Judge, MOORE, Circuit Judge, and STEEL,^* District Judge.

LUMBARD, Chief Judge.

Arthur William Ladson was convicted of selling or facilitating the sale of heroin on March 7 and March 21, 1958, in violation of 21 U.S.C.A. §§ 173, 174, and of conspiracy to violate those sections during the early months of 1958 by entering into an agreement with one Augustus Franks. Ladson was also indicted for a sale of narcotics on February 24, 1958, but was acquitted on this count. He was sentenced to seven years' imprisonment on each of the counts on which he was convicted, the sentences to run concurrently.

This appeal raises three questions. First, Ladson challenges the sufficiency of the evidence to support his conviction on each of the three counts. Second, he contends that admissions made by him to an Assistant United States Attorney on the morning following the evening of his arrest were used against him at trial in violation of the principle set forth in Mallory v. United States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, Upshaw v. United States, 1948, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100, and McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. Third, Ladson claims error in the trial judge's charge on the conspiracy count. We find all three contentions to be without merit.

I. The Mallory Question

Ladson and Franks were arrested pursuant to a warrant at about 7:00 p.m. on Friday, April 18. They were both taken to the offices of the Bureau of Narcotics at 90 Church Street in New York City, where they were questioned by several agents before being taken to the Federal House of Detention on West Street somewhat after midnight. Ladson made incriminating admissions to the agents during the course of the evening, but their use at the trial is not here attacked.¹ He appeared before a United States Commissioner in the Courthouse at Foley Square at about noon on Saturday, but first he had been taken to the office of Assistant United States Attorney Lunney in the same building, where he was questioned for about an hour beginning at 11:00 a. m. and made the statement the admissibility of which is here attacked. The statement in substance confessed to all the charges on which Ladson was ultimately convicted. Ladson testified that a commissioner had been in the building since 11:00 a. m. and now contends that delaying the hearing for one hour while a commissioner was available was "unnecessary" within the meaning of Rule 5(a) of the Federal Rules of Criminal Procedure and thus the confession should have been excluded.

We hold that the admission of the statement was proper for two reasons. First, under the circumstances appearing from the record a delay of one hour for questioning by the Assistant was not unnecessary. Second, even if the delay were not justified by the facts before us, Ladson's failure to make a clear Mallory objection at trial bars his raising it here.

We find sufficient justification on this record for a delay in arraignment of one hour to permit Ladson to be questioned by the Assistant United States Attorney. The admissions Ladson made to the narcotics agents the evening before had not been put into written form. A delay of an hour or more for the purpose of reducing oral admissions to writing clearly does not violate Rule 5(a). United States v. Vita, 2 Cir., 1961, 294 F.2d 524; Metoyer v. United States, 1957, 102 U.S. App.D.C. 62, 250 F.2d 30. The brief questioning by the Assistant was similarly a proper means of confirming Ladson's confession and putting it into a more usable form.

It is well established that not all confessions made between arrest and the commissioner's hearing are inadmissible. United States v. Mitchell, 1944, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140; Lockley v. United States, 1959, 106 U.S.App.D.C. 163, 270 F.2d 915; United States v. Hymowitz, 2 Cir., 1952, 196 F.2d 819. And, within reasonable limits, a chain of questioning need not be interrupted the very instant that it becomes appropriate and feasible to take the suspect before a commissioner. United States v. Vita, supra, at page 532 of 294 F.2d. This is so especially where, as in this case, the suspect is willing to talk. United States v. Leviton, 2 Cir., 1951, 193 F.2d 848, 852-855, certiorari denied 1952, 343 U.S. 946, 72 S.Ct. 860, 96 L.Ed. 1350. Although Ladson denied it at trial, the transcript of the interview by the Assistant indicated that Ladson was advised of his rights and stated that he understood them; there is no claim or evidence of any kind of coercion.

The rights of persons in custody must, of course, be protected by scrupulous observance of the rules that have been laid down for the police and prosecuting authorities. But "the duty enjoined upon arresting officers to arraign `without unnecessary delay' indicates that the command does not call for mechanical or automatic obedience. Circumstances may justify a brief delay between arrest and arraignment * * *" Mallory v. United States, 1957, 354 U.S. 449, 455, 77 S.Ct. 1356, 1359, 1 L.Ed.2d 1479. Here, for purposes of Rule 5(a) the delay was for a single hour, and the time was used to check the defendant's pedigree and to confirm admissions which he had already made in part. The questioning was by the Assistant United States Attorney whose duty it was to determine what charges should be made and to conduct the prosecution of those charges. It was entirely appropriate for him to seek a more elaborate statement upon which to proceed, in addition to seeking facts which would be relevant to the fixing of bail by the commissioner.

There are other reasons why it was reasonable and necessary for the Assistant to question Ladson. Ladson's accomplice Franks had just been questioned by him; Franks, whose answers do not appear from the record, might have implicated Ladson in offenses previously unknown to the police, or might have attempted, as he did at one stage of the trial, to show that his friend was innocent of the offenses charged. In either case, further questioning was advisable and justified. Still other reasons might have appeared had the Mallory issue been raised and had the trial judge then conducted the usual hearing to resolve the issue. As it was, the government never had occasion to call Mr. Lunney as a witness to give further or more detailed justification for the delay.

Thus we reach the alternative ground for denying Ladson's Mallory claim — the failure of his counsel to make an objection at a time when the necessary determination of fact could be made. Blackshear v. United States, 1958, 102 U.S.App.D.C. 289, 252 F.2d 853, certiorari denied, 1959, 359 U.S. 1004, 79 S.Ct. 1144, 3 L.Ed.2d 1033; Lawson v. United States, 1957, 101 U.S.App.D.C. 332, 248 F.2d 654, certiorari denied, 1958, 355 U.S. 963, 78 S.Ct. 552, 2 L.Ed.2d 537. Ladson's counsel moved on two occasions to have the confession excluded, but at neither time did he put his motion in such a form that either the trial judge or government counsel could be expected to regard it as a claim that the vice was the illegality of Ladson's detention.² On the first occasion, he argued that it was premature to admit the statement, "for there may be other evidence offered by the defendant in his defense, affirmatively, to establish that this statement or this exhibit was obtained by coercive measures" and was "not a voluntary statement of this defendant." To be sure, shortly before this motion was made, defense counsel mentioned the Mallory case in the sentence set forth in the margin,³ but this purpose, although not clear, was definitely not to raise the objection that illegal detention voided Ladson's statement.

Ladson's first motion for exclusion was denied without prejudice, and was renewed, in the form of a motion to strike the statement, at the close of the government's case. Here counsel again argued involuntariness, and further that Ladson "had no complete understanding of the nature of the statement, and that it was taken before arraignment." But this colloquy followed immediately:

"The Court: Well, there is no bar that I know of to a statement taken before arraignment, is there, Mr. Kaye?

"Mr. Kaye: Well, there is a bar if you establish facts consistent that there was lack of due process of law in taking the statement.

"The Court: Yes, I grant you.

"Mr. Kaye: Because in Mallory against the United States —

"The Court: You don\'t have to argue that.

"Mr. Kaye: That is my argument that is posed here. Here is a man that is taken to a United States Attorney\'s office immediately upon his apprehension and arrest, and he is not arraigned until the next morning at 10:30. sic In the meantime, this statement is extracted, I say, from him under a promise made to Franks and relayed to this defendant, the promise of cooperation. Whether there was a promise of doing something for consideration in return there, that may be sufficient or not sufficient, but I say here was an inducement given to the defendant to make the statement, and the statement was taken from a man who doesn\'t understand it. * * * I say that, all put together, spells out the implication that this was not the type of statement that could be considered or professed to be a voluntary statement taken from a defendant.

"The Court: Your motion is denied."

In net result, counsel's remarks on this occasion no more raised the illegality of Ladson's detention than...