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April 30, 1964

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

The opinion of the court was delivered by: HOLTZOFF

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.

 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 see the defendant, his distant cousin by marriage, at Police Headquarters. Pappas asked the defendant what he was doing there and the defendant gave a noncommittal answer. Pappas and the defendant then had a long conversation in Greek, which was their native tongue. During this protracted conference, Pappas suggested to the defendant that they might get up and go, but the defendant seemed reluctant to leave.

 At the suggestion of Sergeant Gray, the defendant agreed to submit to a lie detector test. For that purpose he was conducted to the office of the General Assignment Squad, where the polygraph apparatus was located. It was then about 7:30 p.m. In about two hours the defendant returned to the Safe Squad office, the lie detector test having been administered in the interim. Sergeant Gray discussed the results with the defendant and Pappas. Pappas testified that in the course of the conversation in Greek, he told the defendant that if in fact the defendant had participated in the crime, he would like to know it from the defendant himself, rather than to hear about it first from some outsider.

 At about 10:15 p.m. the defendant began to weep and speaking in Greek admitted to Pappas his complicity in the crime. Pappas orally translated this admission to the police. The defendant then was asked by the police whether he was willing to make a written statement, but was also informed that he did not have to do so. The defendant replied that he would like to make such a statement. Sergeant Smith then transcribed the statement directly on the typewriter at the defendant's dictation. Shortly after the dictation began, Pappas went out to a nearby restaurant and brought back sandwiches and coffee. The dictation was suspended while Pappas, the defendant and the two police officers partook of the refreshments. It was then resumed. This procedure consumed some time, as the statement narrated the events in great detail and consists of three full single-spaced typewritten pages. After the dictation was completed, Sergeant Smith slowly read the statement aloud. A carbon copy was given to the defendant in order that he might follow the reading. Other carbon copies were handed simultaneously to Pappas and Sergeant Gray. When the reading started the defendant was instructed to interrupt at any time and indicate any changes or corrections that he desired to make. After the reading was finished, the defendant signed the statement and Sergeant Gray, Sergeant Smith and Pappas signed as witnesses. The police officers then formally announced to the defendant that he was under arrest on charges of housebreaking and larceny. This was at about 12:20 a.m.

 Sergeant Gray communicated with an Assistant United States Attorney and the latter in turn succeeded in reaching one of the Judges of the Municipal Court (now known as the Court of General Sessions) on the telephone and requested him to come to the Courthouse to hold a hearing. Presumably the Judge got up out of bed in the middle of the night and made his way to the Courthouse, arriving there about 2:05 a.m. A hearing was conducted and the defendant was bound over for a later appearance. The Judge fixed bond, which was promptly given. Incidentally Pappas paid the premium to the bondsman.

 On cross-examination Sergeant Gray stated that the defendant had been free to leave at any time up to 10:15 p.m., and that if he had tried to depart, the police would not have obstructed him in any way. He explained that until the oral confession was made they felt that they did not have sufficient evidence justifying an arrest. He candidly added, however, that if the defendant had tried to leave at any time after 10:15 p.m., when he made his oral confession, they would have prevented him from doing so, and would have immediately placed him under formal arrest.

 The testimony of Sergeant Gray and Pappas was not contradicted in any way. They were not impeached on cross-examination. The defendant did not testify at the preliminary hearing, which took place out of the presence of the jury, although the Court in order to avoid any possible misunderstanding advised the defendant's counsel that at such a preliminary hearing, the defendant might testify without waiving his privilege against self-incrimination, and would not be subject to cross-examination concerning the facts of the offense or any other matter except those regarding which he had testified and, that as a result of doing so, he would not thereafter be compelled to testify before the jury. The defendant, however, did not take advantage of this opportunity. While no adverse inference may be drawn from that fact, nevertheless, an opposite inference is not justified either and the Court may not assume that if the defendant had testified at the preliminary hearing, he would have contradicted any part of the testimony adduced in behalf of the Government. The Court finds the testimony given by Sergeant Gray and Pappas to be true.

 The Court found as a fact on the basis of Sergeant Gray's testimony that the defendant must be deemed to have been in police custody from 10:15 p.m., since he would not have been free to leave Police Headquarters after that time had he tried to do so. On the other hand, he was not under arrest previously to 10:15 p.m. The Court admitted the confession, having concluded that there was no unnecessary delay in taking the defendant before a committing magistrate between the time of arrest and the signing of the written statement.

 The defendant later took the witness stand before the jury. He admitted that he was in the taxicab with Antonelli and Berman on the night of the offense, but said that he was intoxicated, fell asleep and did not know what happened or where Antonelli and Berman went until he awoke in Berman's house in the early morning hours. He also testified that he signed the confession before it was read and before he realized its contents and that subsequently it was too late to do anything about it. The jury found him guilty.

 While in its ultimate analysis the question to be determined is of a narrow scope, it has so many ramifications and exerts such a weighty effect on the administration of criminal law and the trial of criminal cases, that in order to deal with it adequately it seems necessary first to place it in its setting. Confessions play an important and vital part in criminal law. If freely and willingly made, a confession is of high probative value, because ordinarily an innocent person does not confess to the commission of a crime. In spite of occasional skepticism on the part of some who have had limited practical contact with the realities of criminal cases, such confessions are very frequent. They may be motivated in different ways. At times the accused makes a confession in the hope of securing some degree of leniency, -- a hope that is generally not misplaced. Such a confession may be made at the very threshold immediately after arrest, or it may be forthcoming after an interrogation as a result of which the accused perceives that the prosecution has a strong case against him and that his struggles at exclupating himself have been unsuccessful. At other times the accused makes a confession as a result of a psychological urge or compulsion to unburden himself of a sense of guilt. *fn1" Such a mental operation is well recognized by students of the human mind and human emotions. At times a confession may be the result of remorse or contrition, or a desire to make amends. Confessions should be encouraged. They are approved and sanctioned by religion.

 It is indeed true that false confessions, though highly infrequent, are not entirely unknown. A chivalrous desire to shield someone else, or an effort to divert attention from a more serious offense that the suspect actually committed, have on rare occasions resulted in untrue confessions. Persons with a psychopathic or unstable personality have been known to imagine that they committed a crime that they have read or heard about. In order to eliminate the possibility of a false confession, the law does not permit a conviction on the basis of an uncorroborated confession standing alone. It requires corroboration either by separate proof of the corpus delicti or by independent evidence sustaining the trustworthiness of the confession, Opper v. United States, 348 U.S. 84, 92-93, 75 S. Ct. 158, 99 L. Ed. 101; Smith v. United States, 348 U.S. 147, 152-154, 75 S. Ct. 194, 99 L. Ed. 192; Smoot v. United States, 114 U.S.App.D.C. 154, 312 F.2d 881.

 There are two limitations on the admissibility of a confession at the trial of a criminal case. The first and fundamental restriction is that a confession in order to be admissible must be voluntary. It must not have been brought about, in whole or in part, either by threats or by any degree of coercion, or by inducement, whether the coercion consists of physical torture or abuse, or of mental or moral pressure. To obtain a confession in such a manner is contrary to the instincts of humanity and does not accord with civilized standards of law enforcement. Such measures create feelings of abhorrence and aversion in the mind of modern Western man. This principle is, therefore, founded on abstract justice. Moreover, the reliability of a confession so obtained is questionable. While this rule of exclusion originated in the law of evidence, it has been elevated to the dignity of a Constitutional principle as an element of due process of law under the Fifth and Fourteenth Amendments.

 The second limitation on the admissibility of confessions is that involved in the instant case. It has been developed only during the past decade and is entirely a rule of practice confined to the Federal courts. It does not involve any Constitutional principle, especially as preliminary hearings do not form an element of Constitutional due process of law and are not required by it. As far as is known it has not been adopted by any of the States. It has been evolved by judicial decisions and was definitively formulated by the Supreme Court in Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479. It provides that a confession or an admission obtained during a period of unnecessary delay between arrest and appearance of the defendant before a committing magistrate, is not admissible in evidence at the trial. The rule does not concern itself with the question whether the confession is voluntary. Its purpose is solely to serve as a sanction or a means of enforcement of Rule 5(a) of the Federal Rules of Criminal Procedure, which requires an officer making an arrest to take his prisoner without unnecessary delay before a committing magistrate. The rule is of a purely practical nature and is not based on any principle of morals or abstract justice. It is somewhat anomalous because rules of evidence generally deal with materiality, relevancy or competency of evidence, while the Mallory doctrine is invoked merely as a means of enforcing another rule of practice. The impact of this new rule is particularly far-reaching in the District of Columbia, inasmuch as the District, being a Federal area, has no tribunal corresponding to State courts of general jurisdiction, and not only Federal offenses but also all felonies which elsewhere would be cognizable in State courts, in the District of Columbia are tried in the Federal court. *fn2"

 While the Mallory doctrine is clear and definite, the opinion of the Supreme Court leaves one essential aspect without any definition. The meaning of the vital term 'unnecessary delay' is left open, presumably for delineation by future decisions. The opinion makes it clear, however, that the term is flexible and that the extent of a permissible delay depends on circumstances. Thus, it contains the following comment (354 U.S. p. 455, 77 S. Ct. p. 1359, 1 L. Ed. 2d 1479):

 '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, as for instance, where the story volunteered by the accused is susceptible of quick verification through third parties. But the delay must not be of a nature to give opportunity for the extraction of a confession.'

 One phase of the question was crystallized by the Supreme Court in United States v. Mitchell, 322 U.S. 65, 64 S. Ct. 896, 88 L. Ed. 1140, which ruled that a confession made promptly upon arrival at a police station or other place of detention, is admissible in evidence, since at that moment there is no violation of Rule 5(a). The case further held that the mere fact that subsequently an unnecessary delay may occur before the defendant is brought before a magistrate, does not retroactively vitiate the confession and render it inadmissible. In other words the test is whether a period of unnecessary delay has commenced prior to the making of the confession. The fact that it may have taken place later is immaterial. While the Mitchell case antedated the Mallory decision, the former was not overruled. The fact that the same member of the Supreme Court wrote the opinions in both cases, is significant in this connection.

 The Supreme Court has not had occasion to speak on the meaning of the term 'unnecessary delay' in Rule 5(a) subsequently to the Mallory case and, therefore, the topic remains open insofar as that Court is concerned. A scrutiny of the cases decided on this point by various Courts of Appeals indicates that the Circuits are in disagreement as among themselves. The difficulty is accentuated in the District of Columbia Circuit, because in the District of Columbia there are two conflicting and irreconcilable lines of decisions on this question. There thus appear to be no decisions in regard to it that are binding or controlling on this Court. As a consequence the law on this point is unsettled and in a state o flux.

 Before proceeding to a detailed consideration of the cases, it seems desirable to endeavor to ascertain the intention of the draftsmen of Rule 5(a). It may be deduced from the Notes of the Advisory Committee on the Rules of Criminal Procedure, which accompanied the proposed Rules. While these Notes are not authoritative, they are somewhat analogous to a Congressional Committee Report in determining the intention of the framers of the Rules. The pertinent note on this point is as follows:

 'What constitutes 'unnecessary delay', i.e., reasonable time within which the prisoner should be brought before a committed magistrate, must be determined in the light of all the facts and circumstances of the case. The following authorities discuss the question what constitutes ...

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