United States v. Mihalopoulos

• Decision Date: 30 April 1964
• Docket Number: Crim. No. 248-63.
• Citation: 228 F. Supp. 994
• Parties: UNITED STATES of America, Plaintiff, v. Nicholas G. MIHALOPOULOS et al., Defendants.
• Court: U.S. District Court — District of Columbia

228 F. Supp. 994

UNITED STATES of America, Plaintiff, v. Nicholas G. MIHALOPOULOS et al., Defendants.

Crim. No. 248-63.

United States District Court District of Columbia.

April 30, 1964.

COPYRIGHT MATERIAL OMITTED

William H. Collins, Jr., Asst. U. S. Atty., for plaintiff.

Milton C. Gelenian, Washington, D. C., for the defendant Mihalopoulos.

HOLTZOFF, District Judge.

This case presents a problem regarding the application of the rule which at the trial of a criminal proceeding bars the admission in evidence of a defendant's confession or incriminating statement if made during a period of unnecessary delay between the arrest and his appearance before a committing magistrate. Specifically the question is, what constitutes "unnecessary delay" within the meaning of that doctrine as formulated in Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479.

The defendant was found guilty on charges of housebreaking and larceny. The case is now before the Court on his motion for a new trial. The principal point raised is the admissibility of a written confession, which was introduced in evidence over the objection of defense counsel. In view of its importance both in the trial of criminal cases as well as in the administration and enforcement of the criminal law, the Court has examined and explored the subject with some degree of elaboration.

The defendant Mihalopoulos was indicted together with co-defendants Antonelli and Berman, on charges of breaking into a tomato canning plant of Pete Pappas and Sons, Inc., and stealing a sum of money in excess of $1300. The Government contended that the facts were as follows. The defendant, who was a second cousin by marriage of Gus Pappas, the owner and operator of the plant, informed his two co-defendants that Pappas kept large sums of money in the building. The three men drove to the premises on the night of January 24-25, 1963 in a taxicab owned and operated by Antonelli. The two co-defendants then broke into the plant, found a safe in one of the offices, smashed and broke it open, and took a sum of money amounting to over $1300. In the meantime the defendant remained in the taxicab, having been instructed by his co-defendants to watch and to signal if any suspicious person appeared while they were perpetrating their activities inside the building. Later they divided the loot, the defendant receiving a sum of $195.

The defendant Mihalopoulos alone stood trial. Each of the two co-defendants had pleaded guilty. Berman has not as yet been sentenced. Antonelli received a suspended prison sentence and was placed on probation. He had related the entire story to the authorities and testified as a Government witness at this trial.

Antonelli was the principal witness for the Government. His testimony may be briefly summarized as follows. He and Berman met the defendant at a restaurant on 14th Street in the Northwest Section of Washington, at about 11:45 p. m., on January 24. The three drove in Antonelli's taxicab to the Pappas plant, which is located in Southeast Washington. The defendant had previously informed his companions that Pappas generally kept between $35,000 and $50,000 in a desk drawer. They parked in an alley near the plant. The defendant was instructed by his two associates to stay in the cab, keep watch and give a prearranged signal in the event that any suspicious person appeared in the vicinity. The two co-defendants then broke into the building by using a hacksaw to open the door, and made their way upstairs into the office. They ransacked all of the desks, but found no money. Finally they observed a safe. Antonelli then returned to the cab, took out some tools, including a large sledge hammer, and carried them back upstairs. He broke the dial on the safe with the sledge hammer, while Berman used an instrument known as a "punch". The safe door was opened in this manner. They found a number of large envelopes filled with currency, as well as a metal cash box containing more money. They took all of the money. According to Antonelli the total amount stolen was $1385. They then returned to the taxicab and immediately drove to Berman's house, located in a nearby suburb in Maryland, where they went into the basement and distributed the money among themselves, as well as giving some to a woman who lived in the house. Berman and Antonelli gave $195 to the defendant, while each of them retained $545. The next day Berman and Antonelli went to the defendant's apartment and instructed him to say if the police picked him up, that he had been a passenger in Antonelli's cab. The defendant was arrested late in the evening of Saturday, January 26, while Antonelli and Berman were taken into custody early on the following morning. Out of the proceeds of the crime, Antonelli returned to the police the sum of $300, and Berman gave back $210.

Antonelli's testimony thus clearly implicated the defendant as an aider and abetter. His credibility as a witness was, however, manifestly vulnerable. In due course in its instructions to the jury, the Court stated that according to his own testimony, Antonelli was an accomplice and that an accomplice's testimony must be received with caution and scrutinized with care. Thus far, there was very little corroboration of Antonelli's testimony insofar as it implicated the defendant.

Government counsel then offered in evidence a written-confession made by the defendant to the police after his arrest. This confession related the events in detail and coincided in all essentials with Antonelli's version. The defendant's counsel objected to its introduction on the ground that it was made during a period of alleged unnecessary delay between the defendant's arrest and his appearance before a committing magistrate and, therefore, was barred by the rule of the case of Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. The objection was overruled. The point has now been renewed on the defendant's motion for a new trial and forms the subject matter of this opinion.

When the objection to the admissibility of the confession was interposed, the Court conducted a preliminary hearing out of the presence of the jury. The circumstances under which the confession was made were explored in great detail. The pertinent facts brought out may be summarized as follows.

Sergeant Gray of the Safe Squad of the Metropolitan Police Department, arrived at the Pappas plant on the morning of January 25. An investigation of the neighborhood was made and information was obtained from one Nelson Dyer, who lived in the vicinity, that at about the preceding midnight he had observed a taxicab parked near the establishment and that the name "Antonelli" was printed on the vehicle. This clue apparently gave the police a starting point, especially as Antonelli was well known to them. That afternoon Antonelli was asked to come down to the Safe Squad office. He stated that he had driven his cab in the neighborhood with a passenger, but he did not at that time confess to any connection with the crime. He then left. Apparently learning from Antonelli the identity of his passenger, the police endeavored to locate the defendant and ascertained that he was in the habit of frequenting a restaurant on 14th Street. On Saturday, January 26, Sergeant Gray and Sergeant Smith went to that restaurant dressed in plain clothes, and waited. At about 1:30 p. m. the defendant appeared. The two officers, after a discreet interval, approached and asked him whether he had been a passenger in a cab on the night of January 24, and had been taken to the Southeast section of the city. His reply was in the affirmative. He explained that his intention had been to meet a girl in that part of town, but that he changed his mind and asked the cab driver to return him to the neighborhood of Thomas Circle. Apparently the police were not convinced by his reply or impressed by Antonelli's previous story to a similar effect.

Sergeant Gray then said that he would like to talk to the defendant further about Antonelli and invited him to go to Police Headquarters for that purpose, but added that he was not under arrest and that he did not have to come if he did not want to. The defendant responded that he was a good American, desired to cooperate with the police and would go with them. The three then drove to Police Headquarters in an unmarked Police Department automobile. The defendant was not handcuffed, and was not under restraint of any kind. They arrived at Police Headquarters about 2:30 p. m. and proceeded to the office of the Safe Squad. This office is a large room with a number of desks assigned to various members of the Squad. The door was open. During the afternoon and evening other members of the Squad came and went from time to time in connection with other business. The defendant was not placed in a cell at any time. He was questioned in detail concerning his ride in Antonelli's cab, and he repeated the circumstances with greater particularity. These conversations continued on and off until about 4:00 o'clock. During that interval the defendant was again told that he was not under arrest and was free to go if he wished. A couple of times he left the office unaccompanied and unattended to go to the rest room located elsewhere in the building, and on another occasion he left alone to get a package of cigarettes. He was allowed to use the telephone. He was advised of his rights. At one time during the afternoon, the defendant decided to depart, got up and walked out. Sergeant Gray testified that he and his associate did not try to follow or prevent him from leaving, because he was not under arrest. Apparently, however, the defendant changed his mind, because he shortly returned to the Safe Squad office.

At about 4:00 o'clock Sergeant Gray telephoned to Gus Pappas and invited him to come down for an additional interview. Pappas arrived at about 4:30 p. m. and was surprised to...