Full opinion text
EDGERTON, Senior Circuit Judge: Judges Bazelon, Fahy, Washington, Wright, and McGowan concur in parts I, II, and VI of this opinion. These parts are the opinion of the court. Judges Bazelon, Fahy, and Wright join in parts III, IV, and V, which are not the opinion of the court. Willie Lee Short and David Jones appeal from convictions of assault with intent to rob. D.C.Code § 22-501. Short, David Jones and Arthur Jones appeal from convictions of robbery. D.C.Code § 22-2901. The crimes were alleged to have occurred on August 3 and July 28, 1962. A warrant for Short’s arrest was issued in the District of Columbia in August, 1962. On Thursday, September 13, police in Raleigh, North Carolina, arrested him on a state charge, notified the District of Columbia police, and got from Short a signed “waiver of extradition.” On Saturday, September 15, Detective Sergeant O’Bryant of the District of Columbia police arrived in Raleigh with the warrant and wrote on it: “Arrested 9-15-62 10:30 AM Sheriff’s Office Raleigh N.C. Det. Sgt. Tilmon B. O’Bryant.” By 11:00 AM O’Bryant had begun to question Short. At first he denied all guilt, but according to O’Bryant’s testimony on cross-examination he “admitted his participation” within 2 or 3 minutes. O’Bryant questioned him about an hour and a half or two hours before he began making confessions which O’Bryant typed. On Sunday, September 16, O’Bryant brought Short to the District of Columbia. On Monday morning Short was taken for the first time before a committing magistrate, who appointed a lawyer to represent him. The lawyer talked with him five or ten minutes and told the judge he waived preliminary hearing. Short did not know what this meant. He could not make bond and was taken back to jail. Fifteen days later, on October 2, he was taken before a grand jury and questioned. The confessions typed in North Carolina were read and he confirmed them. Indictments followed. The confessions were admitted in evidence at the trials. I Rule 40(b), F.R.Crim.P., requires that a person “arrested upon a warrant issued in another state * * * shall be taken without unnecessary delay before the nearest available commissioner or a nearby judge of the United States in the district in which the arrest was made” who “shall inform the defendant of the charge against him, of his right to retain counsel and of his right to have a hearing or to waive a hearing by signing a waiver before the commissioner or judge. The commissioner or judge shall also inform the defendant that he is not required to make a statement and that any statement made by him may be used against him, shall allow him reasonable opportunity to consult counsel and shall admit him to bail as provided in these rules.” There was no compliance with this Rule. When O’Bryant, in the Sheriff’s office in Raleigh, wrote on the warrant: “Arrested 9-15-62 10:30 AM”, it was his duty to take Short “without unnecessary delay” before a magistrate who would advise him of his rights. Instead, O’Bryant questioned him at length. O’Bryant “did not see any need to take him before a committing magistrate in the State of North Carolina” and made no effort to do so. In oral argument of this appeal the government conceded that Rule 40(b) should have been and was not complied with. Though Short had been in the custody of state officers, at some time he became O’Bryant’s prisoner. There is no evidence that this time was later than 10:30 AM, when O’Bryant wrote “Arrested” on the warrant, or that the state officers who then allowed him to question Short in violation of law would not have allowed him to take Short before a magistrate in compliance with law. He testified that the state officers were “most hospitable”. “Unnecessary delay”, therefore, began not later than 10:30 AM and included' the time some two hours later when O’Bryant began typing the confessions that were introduced in evidence at the trials. Some delay for the purpose of questioning an arrested person to determine whether he should be held or released has sometimes been thought “necessary”. But this assumes some appropriate purpose for the delay other than obtaining a confession, as in Metoyer v. United States, 102 U.S.App.D.C. 62, 250 F.2d 30 (1957) , and Heideman v. United States, 104 U.S.App.D.C. 128, 259 F.2d 943 (1958) , where “inquiry to make sure that the police were not charging the wrong persons” (Heideman, 104 U.S.App.D.C. at 130, 259 F.2d at 945) seemed appropriate. It has nothing to do with this case. O’Bryant did not go from the District of Columbia to North Carolina with the arrest warrant in his pocket for any such purpose. He well knew that Short was to be held. He had no authority to release him. Moreover O’Bryant testified that Short made an oral confession within “two or three minutes.” The government does not challenge the trial judge’s findings that the purpose of O’Bryant’s interrogation of Short was “to get a confession out of him.” Before he began to write, he subjected Short to an hour and a half or two hours of questioning for the purpose of getting the confessions which O’Bryant typed and which were introduced in evidence. The time lag occurred not while the statements were being typed but before the typing began. There is nothing to take this case out of the McNabb-Mallory rule that “a confession is inadmissible if made during illegal detention due to failure promptly a carry a prisoner before a committing magistrate”. Upshaw v. United States, 335 U.S. 410, 413, 69 S.Ct. 170, 93 L.Ed. 100 (1948). Short’s confessions should not have been admitted in evidence. His convictions must therefore be reversed. II In each trial, Short’s confession was read to the jury with “name” nr “named person” substituted for the names of the Joneses. But as the Supreme Court has said, other testimony may make it impossible for such a device to divert incrimination from the confessor’s co-defendants to “an anonymous nobody”. Stein v. New York, 346 U.S. 156, 194, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953). In the present case, other testimony about David and Arthur Jones made it obvious that the omitted names were theirs. Short’s illegally obtained confessions therefore prejudiced them as well as him. As against a confessor’s co-defendants, the confession is inadmissible hearsay. In accordance with time-honored custom, the trial judge cautioned the jury that a confession is evidence only against the confessor. But no jury can forget one defendant’s confession in considering the case of a co-defendant whom it implicates. Speaking for the Second Circuit, Judge Learned Hand called the time-honored custom a “subterfuge”. He said: “There is no reason why the prosecution if it chooses to indict several defendants together should not be confined to evidence admissible against all.” But he said the “rule probably furthers, rather than impedes, the search for truth, and this perhaps excuses the device which satisfies form while it violates substance; that is, the recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody else’s.” Nash v. United States, 54 F.2d 1006, 1007 (1932). As this statement suggests, the theory behind the subterfuge probably is that a confession is such valuable evidence against the confessor that sound policy permits its use at a joint trial, despite the harm it does to the confessor’s co-defendants who ought to have the protection of the hearsay rule. In 1957 the Supreme Court sustained a co-defendant’s conviction where (1) the confession was admissible against the confessor, (2) it was impractical to delete references to the co-defendant, (3) there was enough other evidence against him to sustain his conviction, and (4) the time-honored admonition to the jury was clearly and repeatedly given. Since Short’s confessions were not admissible even against him, there is no reason whatever for permitting them to prejudice his co-defendants. And the purpose of the McNabb-Mallory rule, to discourage prolonged questioning in order to get a confession before the suspect is told of his rights by a magistrate, would be defeated as much by allowing a wrongly obtained confession to be used against co-defendants as by allowing it to be used against the confessor himself. It follows that the convictions of the Joneses as well as the convictions of Short should be reversed. In Anderson v. United States the Supreme Court held that admission in evidence of illegally obtained confessions of some defendants vitiated the convictions of all. One ground of the decision was that the judge’s charge allowed the jury “to assume that in ascertaining the guilt or innocence of each defendant they could consider the whole proof made at the trial.” 318 U.S. 350, 356-357, 63 S.Ct. 599, 87 L.Ed. 829 (1943). But in the later case of Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945), in sustaining a state court conviction where a co-defendant’s coerced confession had been introduced at a joint trial, the Supreme Court distinguished Anderson primarily on the ground that it dealt with “a criminal proceeding in a federal District Court over which we have more control than we do over criminal trials in the state courts”, and only secondarily (“Moreover”) on the ground that it involved an erroneous instruction to the jury. 324 U.S. 401, 411, 412, 65 S.Ct. 781 (1945). Since the present appeals, like Anderson, involve “a criminal proceeding in a federal District Court”, the co-defendants’ convictions should be reversed as in Anderson, not affirmed as in Malinski. Ill We said in 1955: “No doubt it would be a boon to prosecutors if they could summon before a Grand Jury a person against whom an indictment is being sought and there interrogate him, isolated from the protection of counsel and presiding judge and insulated from the critical observation of the public. But •there is a serious question whether our jurisprudence, fortified by constitutional declaration, permits that procedure.” Powell v. United States, 96 U.S.App.D.C. 367, 372, 226 F.2d 269, 274. We think this question should be answered in the negative. We cannot reconcile that procedure, which was used in this case, with the Fifth Amendment guarantee that “No person shall be compelled in any criminal case to be a witness against himself.” Like a trial, a grand jury investigation of a crime is “a criminal case” at which incriminating questions need not be answered. Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). At a trial, putting the accused on the witness stand without his consent and asking him anything at all would violate his constitutional privilege against self-incrimination. We think taking him before the grand jury without his consent and asking him anything violates his privilege. This is perhaps implicit in the Supreme Court’s action in Lawn v. United States, infra, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). If it is not and ours is a minority view, as the New York Court of Appeals said in a different connection “We may as well disregard the weight of authority elsewhere and start with a rule of our own, consistent with practical experience. * * * Consistency requires us to go forward or to go back. We cannot go back. * * * The present distinction is indefensible.” Campbell v. New York Evening Post, 245 N.Y. 320, 157 N.E. 153, 52 A.L.R. 1432 (1927). In Fisher v. United States, 328 U.S. 463, 476, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946), the Supreme Court said: “Matters relating to law enforcement in the District are entrusted to the courts of the District. Our policy is not to interfere with the local rules of law which they fashion, save in exceptional situations were egregious error has been committed.” The “Court, in its decisions, and Congress, in its enactment of statutes, have often recognized the appropriateness of one rule for the District and another for other jurisdictions so far as they are subject to federal law.” Griffin v. United States, 336 U.S. 704, 712, 69 S.Ct. 814, 93 L.Ed. 993 (1949). The courts of the District of Columbia should not content themselves with enforcing the minimum standards which the Constitution requires. They should also set for the Nation an example of respect for the rights of citizens. Mere interrogation before a grand jury may harm the accused as much as mere interrogation at a trial. Even if he makes “no direct incriminating statement, there is no way to know whether in fact his appearance was incriminating in the minds of some or all the members of the Grand Jury.” United States v. DiGrazia, 213 F.Supp. 232, 234 (N.D.Ill. 1963). His having been brought there may arouse suspicion. His manner and voice may arouse suspicion. Because grand jury investigations are secret, as we said in Powell he is “isolated from the protection of counsel and presiding judge and insulated from the critical observation of the public.” Though he may be unqualified, as Short was, to decide for himself what questions to answer, he must decide at his peril. If he answers incriminating questions he may make it certain, as Short did, that he will be indicted. And testimony before the grand jury may be used, though Short’s was not, to impeach his testimony at trial. If he refuses to testify at all, or to answer some questions on the ground that answers might incriminate him, the grand jury may draw conclusions. If he refuses to answer questions that are not incriminating, he may be guilty of contempt. The prosecutor read aloud the confessions that O’Bryant had typed, and asked Short if they were his and were true. He acknowledged that they were. Apparently little other evidence was presented, but the grand jury indicted him. He was plainly prejudiced by the interrogation. Short did not validly waive his right not be taken to the grand jury and questioned. “ ‘Courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A waiver is not valid unless it is intelligently made. An “intelligent waiver * * * must depend, in each case; upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.” Ibid. Short is an indigent young Negro whose schooling stopped with the third grade. Cf. Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Williams v. Huff, 79 U.S.App.D.C. 326, 146 F.2d 867 (1945). He cannot read and can barely write. The police found it necessary to read and explain to him twice a simple form for waiving extradition. No one told him, before he was taken to the grand jury, what a grand jury was or what his rights before it would be, although the committing magistrate and the police had told him in general terms that he need not “incriminate himself.” Even if the government officers had explained things to him as fully as possible, he would still have been incapable of an intelligent waiver without the advice of counsel. Cf. Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957). Even an “intelligent, mentally acute” defendant should not “be dependent upon government agents for legal counsel and aid, however conscientious and able those agents may be.” Von Moltke v. Gillies, 332 U.S. 708, 720, 725, 68 S.Ct. 316, 92 L.Ed. 309 (1948). Moreover, in our view Short gave no consent, not even an unintelligent one, to be taken before the grand jury on October 2. His actual state of mind is irrelevant, since a state of mind that is not expressed or implied by words or conduct has no legal effect. He was not asked on October 2, or even shortly before that day, whether he wanted to go before the grand jury. He was taken in handcuffs. He had been in jail almost three weeks. Prisoners frequently acquiesce in orders or suggestions, and “true consent, free of fear or pressure is not so readily to be found.” Judd v. United States, 89 U.S.App.D.C. 64, 66, 190 F.2d 649, 651 (1951). When Short was actually facing the grand jury it was too late for any warning to mean much. The warning the prosecutor gave him in the grand jury room would have been inadequate to protect his rights even if Short’s presence had been voluntary. The prosecutor told him he was “before the Grand Jury” but did not tell him in what business the grand jury was engaged. The prosecutor told him he need not answer questions and that answers could be used against him “at any future trial”, but did not tell him the grand jury would use his answers to decide whether to indict him. The prosecutor did not tell him he was entitled to consult counsel before being questioned. IV Short’s Sixth Amendment right “to have the Assistance of Counsel for his defense” was withheld. The right to counsel does not begin at trial. If it began then it would often be worth little, for cases are often lost at earlier stages. The accused “requires the guiding hand of counsel at every step in the proceedings against him.” Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932). This is a constitutional principle, not a mere factual observation. Accordingly the accused is entitled to counsel at arraignment. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); Evans v. Rives, 75 U.S.App.D.C. 242, 250, 126 F.2d 633, 641 (1942). He is entitled to counsel at preliminary hearing, at least if he is then called upon to plead. White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Wood v. United States, 75 U.S.App.D.C. 274, 128 F.2d 265, 141 A.L.R. 1318 (1942). He is entitled to counsel on appeal. Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958). Congress has implemented the constitutional right to the assistance of counsel. The District op Columbia Code provides in § 2-2202 that the Legal Aid Agency “shall make attorneys available to represent indigents in criminal proceedings in the United States District Court for the District of Columbia and in preliminary hearings in felony cases”, and that each court “will make every reasonable effort to provide assignment of counsel as early in the proceedings as practicable.” Rule 44 of the Federal Rules op Criminal Procedure provides that “If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel.” Criminal Rule 24 of the Court of General Sessions is in the same words. Indictment is a crucial “step in the proceedings against” the accused. The right which he has at other crucial stages does not jump the time just before indictment. In this case the committing magistrate, a judge of the Court of General Sessions, had appointed counsel for Short in accordance with that court’s Rule 24. When Short was about to be taken to the grand jury for questioning he badly needed to consult his counsel. But the government prevented him from doing so, by not informing counsel that Short was to be questioned. The committing magistrate determines, after a preliminary hearing unless the accused waives hearing, whether he should be held to await action of the grand jury. It is counsel’s duty “to represent him at every stage of the proceeding” as Rule 24 requires. Any practice of assigning a lawyer for the few moments the accused is before the magistrate and no more would mock the requirement of assistance of counsel. The appointment must continue until the prosecution is terminated or other counsel is appointed, which should normally be before arraignment. Except in rare emergencies no lawyer should be asked to accept a truncated appointment. There is no contention that Short’s counsel, either with or without notice to Short, obtained leave of court to withdraw. Unauthorized withdrawal cannot be tolerated. Judge Prettyman agrees with the views expressed in this paragraph. The Sixth Amendment right to counsel is violated if a confession obtained by questioning an uncounseled defendant after indictment is used against him in a United States court. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) In that case, three Justices pointed out in a dissenting opinion that the Court's reasoning “would seem equally pertinent to statements obtained at any time after the right to counsel attaches, whether there has been an indictment or not * * * ” (377 U.S. at 208, 84 S.Ct. p. 1204). In New York, a defendant’s voluntary statement obtained in the absence of counsel after preliminary hearing and before indictment has been held inadmissible. People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103 (1962). The Fifth Circuit has said: “No one can dispute the truth of Professor Chafee’s statement, ‘A person accused of crime needs a lawyer right after his arrest probably more than at any other time.’ It would not be unreasonable therefore to recognize an accused’s right to counsel from the moment of arrest.” Lee v. United States, 322 F.2d 770, 778 (1963). The New York Court of Appeals now recognizes that right. Judge Fuld said for that court, “One of the most important protections that counsel can confer while his client is being detained by the authorities is to preserve his client’s privilege against self-incrimination and prevent the deprivation of this and other rights which may ensue from such detention.” People v. Donovan, 13 N.Y.2d 148, 243 N.Y.S.2d 841,193 N.E.2d 628 (1963). Finally, in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), the Supreme Court held that in the particular circumstances of that case the accused was constitutionally entitled to counsel during police questioning before indictment. Though the Court’s express ruling was no broader than the facts, which were different from the facts of our case, the underlying principle that the right to counsel begins before indictment applies here. By failing to inform counsel of the impending examination, the prosecution deprived Short of his assistance at a crucial time and greatly to Short’s prejudice. Counsel might even have succeeded in preventing him from being taken before the grand jury. In general, “secret, ex parte interrogations of defendants are not conducted when a prisoner has counsel. * * * This practice carries secret questioning to the point of invidious discrimination against indigent defendants.” Lee v. United States, 322 F.2d 770, 777 (5th Cir. 1963). Though counsel could not have gone before the grand jury with Short he could have given him valuable advice in advance as to what questions, if any, he should answer when he was taken there. It is most unlikely that Short would have repeated his former confessions there if he had been counseled. Counsel might have advised him that those confessions were illegally obtained and could not be used in any trial. V Since an indictment obtained in violation of federal constitutional rights must be dismissed, at least where substantial prejudice resulted, the violations of Short’s privilege against self-incrimination and of his right to the assistance of counsel make it necessary to dismiss the indictments against him. This is quite independent of the fact that his written confessions, which were read to the grand jury, were obtained in violation of the McNabb-Mallory rule. We see neither reason nor authority for distinguishing between unconstitutional composition of a grand jury, as in Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950), and unconstitutional proceedings of a grand jury, as here, although the Supreme Court has used broad language to the effect that “An indictment returned by a legally constituted unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits.” Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956); repeated in Lawn v. United States, 355 U.S. 339, 78 S.Ct. 811, 2 L.Ed.2d 321 (1958). The context in each of these two cases shows that this broad language applies only when grand jury proceedings have not violated constitutional rights. The petitioner Costello had urged that an indictment based solely on hearsay evidence violated the Fifth Amendment requirement that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * 350 U.S. at 361, 76 S.Ct. 406. In rejecting this contention the Supreme Court used the broad language quoted above and immediately added “The Fifth Amendment requires nothing more”,. i.e., nothing more than an “indictment returned by a legally constituted and unbiased grand jury, * * * if valid on its face”. 350 U.S. at 363, 76 S.Ct. 4060. This means that the grand jury clause of the Fifth Amendment “requires nothing more”. No other constitutional question was before the Court. We do not understand the Court’s opinion to say anything about any other constitutional question. Due deference forbids us to interpret the opinion as containing a vast dictum to the effect that the entire Constitution, including all its Amendments, “requires nothing more”; in other words, that the proceedings of a legally constituted and unbiased grand jury may violate any number of the defendant’s constitutional rights, including his right to the assistance of counsel and his privilege against self-incrimination, without affecting the validity of the indictment. Costello, therefore, is no bar to our view that an indictment obtained in violation of constitutional rights must be dismissed. On the contrary, Costello substantially supports this view. For the Supreme Court affirmed the conviction of Costello on the ground that the grand jury’s action in indicting him had not violated his constitutional rights. The Court thereby implied that if the grand jury’s action had violated his constitutional rights, the indictment would have been invalid and the conviction would have been reversed. At a former trial in Lawn the District judge had dismissed indictments, largely on the ground that compelling prospective defendants to appear for questioning before a grand jury was analogous to compelling them to appear in a criminal trial, though the judge also noted, as we do in this case, that there had been no adequate warning. 115 F.Supp. 674 (1953). Lawn and his co-defendants were afterwards re-indicted for similar crimes and convicted. In the Supreme Court they claimed that the evidence obtained from them in the first grand jury proceeding was used against them in the second grand jury proceeding. The Supreme Court said: “We deal here only with the question whether petitioners, in the circumstances of this case, were entitled to a preliminary hearing to enable them to satisfy their unsupported suspicions that the 1953 grand jury that returned this indictment made direct or derivative use of the materials which they produced before the 1952 grand jury. We hold that they were not.” 355 U.S. at 350, 78 S.Ct. 311. This seems to indicate that if the “unsupported suspicions” had been facts, the second indictment would have been invalid and the resulting convictions would have been reversed. VI In United States v. Tane, 329 F.2d 848, decided by the Court of Appeals for the Second Circuit on March 24,1964, a District Court had dismissed an indictment on the ground that it resulted from illegal wire tapping. The government’s brief on appeal in that case conceded that “where, as here, the indictment rests almost exclusively on challenged testimony, if the challenge is sustained, the indictment may be dismissed.” (p. 2). The Court of Appeals held that dismissal of the indictment was within the District Court’s discretion and that, in the light of the government’s concession, discretion had not been abused. The record before us in the present case does not show, and the District Court did not determine, what testimony tending to support the indictments, other than Short’s confessions, was before the grand jury. Judges Washington and McGowan think the District Court should determine that question and should then decide whether the indictments of Short should be dismissed. Irrespective of any constitutional question, they think that on this record the taking of the un-counseled defendant before the grand jury should not be countenanced by us in the exercise of our supervisory power over the administration of criminal justice in the District of Columbia. So that there may be a majority, Judges Bazelon, Fahy and Wright and I join Judges Washington and McGowan in thus disposing of the dismissal matter for the present, although we think, as we have shown in parts III, IV and V of this opinion, the indictments should now be dismissed, not merely because of our supervisory power but because Short’s compelled appearance before the grand jury violated his right against self-incrimination and because his right to counsel was violated by failure to notify his lawyer that he was to appear. All the appealed convictions are reversed and the cases are remanded to the District Court for further proceedings consistent with parts I, II, and VI of this opinion. Less than a majority of the court think our ruling in part VI should have retroactive as well as prospective application. That ruling is therefore limited to the present case and cases in which indictments are hereafter found or sought. Compare Durham v. United States, 94 U.S.App.D.C. 228, 240, 214 F.2d 862, 874, 45 A.L.R.2d 1430 (1954). Reversed and remanded. . This is practically identical with the provisions of Rule 5(a), F.R.Cbim.P., regarding persons arrested on a domestic warrant. . Officers testified they were willing to let Short go because the District of Columbia charges were more serious than the state charge. United States v. Coppola, 281 F.2d 340 (2d Cir. 1960), aff’d per curiam, 365 U. S. 762, 81 S.Ct. 884, 6 L.Ed.2d 79 (1960), upheld admission of confessions obtained by the FBI while the defendant was a state prisoner, but “the apprehension and detention were exclusively for state crimes” and there is no suggestion that the FBI had or asserted any control over the prisoner. Moreover, the Court of Appeals said that if the arrest and detention by local police had been “for the purpose of enabling federal officers to question the defendants concerning the bank robberies for a period of time forbidden to federal officers by Rule 5(a) of the Federal Rules of Criminal Procedure, admissions thus obtained would properly be excluded.” 281 F.2d at 344. . That Short had been in state custody does not mean that O’Bryant was mistaken in his belief that he arrested Short. In substance if not in form O’Bryant said to the state officers “If you will let him go I will arrest him.” The arrest was legal. A crime committed in the District of Columbia is a federal crime for purposes of the removal statute. United States v. Wimsatt, 161 F. 586 (S.D.N.Y.1908); United States v. Campbell, 179 F. 762 (E.D.Pa.1910). It is “defined by an act of Congress, a violation of the act is of necessity an offense against the United States, and such offenses have uniformly been prosecuted as such.” Parker v. United States, 3 F.2d 903, at 904 (9th Cir. 1925). But the legality or illegality of the arrest is irrelevant. Even if the arrest had been illegal, that would not have relieved the arresting officer of the obligation to take Short promptly before a magistrate. The status in North Carolina of the warrant and of O’Bryant is therefore irrelevant. This court has sometimes held that if a prisoner confesses as soon as he is arrested and the police immediately reduce his confession to writing instead of taking him immediately before a magistrate, the written as well as the oral confession may be admissible in evidence. Those cases were not reviewed by the Supreme Court. This court in banc does not now consider overruling these cases because they do not cover this case. They emphasize both the promptness with which the written confession was obtained and, with the possible exception of Porter v. United States, 103 U.S.App.D.C. 385, 258 F.2d 685 (1958), cert. denied, 360 U.S. 906, 79 S. Ct. 1289, 3 L.Ed.2d 1257 (1959), the promptness with which the prisoner was then taken before a magistrate. In Meto-yer v. United States, 102 U.S.App.D.C. 62, 250 F.2d 30 (1957), the writing of the confession began “within 20 or 25 minutes after the first voluntary statement” and the prisoner was taken to a magistrate so quickly that he claimed “undue speed” upset his presentation. In Heideman v. United States, 104 U.SApp.D.C. 128, 259 F.2d 943 (1958), cert. denied, 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed.2d 767 (1959), the police did not even take the time to reduce the oral confession to writing. In Muschette v. United States, 116 U.S.App. D.C. 239, 322 F.2d 989 (1963), judgment vacated on other grounds, 378 U.S. 569, 84 S.Ct. 1927, 12 L.Ed.2d 1039 (1964), immediate steps were taken to locate a typist, and the entire time from arrest to presentment was only an hour and twenty minutes. In the present case, O’Bryant testified that Short at first denied the charges; O’Bryant continued to question him and “within two or three minutes”, according to O’Bryant’s testimony on cross-examination, Short confessed; in what detail, if any, does not appear. On direct and re-direct examination, O’Bryant testified only to the later written confessions which he typed. When the alleged oral confessions were made he did not attempt to reduce them to writing but continued to “talk” to Short for an hour and a half or two hours before he began to type. At one point he testified that he “questioned” Short for two hours before he began to type. At another point he said Short told the story in his own words and then O’Bryant asked for written statements. When he began to write, he asked questions and typed answers in narrative form. Little would be left of Mallory if the police, after getting a quick confession, could spend hours discussing the case and then get an admissible written statement. The present case resembles three recent cases in which the police got immediate oral confessions and then continued to seek further evidence from the prisoner before producing him before a magistrate, either by taking him to the scene of the crime, Jones v. United States, 113 U.S.App.D.C. 256, 307 F.2d 397 (1962); Naples v. United States, 113 U.S.App.D.C. 281, 307 F.2d 618 (1962), (in banc), or by questioning him about related crimes, Coleman v. United States, 115 U.S.App.D.C. 191, 317 F.2d 891 (1963). This court held that the oral confessions were admissible but the evidence afterwards acquired should haye been excluded because of unnecessary delay. . Wigmore, Evidence, 3d ed., §§ 1076, 1079, cites cases dating from 1668. . Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). Justices Frankfurter, Black, Douglas and Brennan dissented. Cf. Kramer v. United States, 115 U.S.App.D.C. 50, 317 F.2d 114 (1963). . This is said to be “universally held.” 8 Wigmobe, Evidence, McNaughton rev. 1961, § 2268, p. 406. . See 38 A.L.R.2d 237, 238 (1954); United States v. Cleary, 265 F.2d 459 (2d Cir. 1959), cert. denied, 360 U.S. 936, 79 S.Ct. 1458, 3 L.Ed.2d 1548 (1959). . 8 Wigmore, Evidence, 3d ed., § 2363, p. 727. . Little other evidence was available. In one case but not in the other, the police had Short’s fingerprints. David Jones had surrendered, but he had made no confession. Even at the trials, the government relied heavily on Short’s confessions. The principal corroboration was provided by a co-defendant, Johnson, who confessed before the trials but after the indictments and was rewarded for his testimony by dismissal of the robbery indictment against him and acceptance of a guilty plea to the indictment for attempted robbery. . Detective O’Bryant testified that on September 16, on the way from North Carolina to the District of Columbia, he asked Short whether he wanted to testify before the grand jury and Short said he did. Short denied this. We accept O’Bryant’s testimony. But if, as Short claimed, he did not know what a grand jury was, he may Well have thought O’Bryant meant a trial jury. Probably many laymen think all juries are trial juries. In any case, willingness on September 16 is not willingness on October 2. There is nothing to show that anyone even thought on October 2 that Short was then willing to be taken to the grand jury and interrogated. '. At a hearing on a motion to dismiss the indictments Short said, when pressed, that when he was before the grand jury he wanted to testify because he “knew he hadn’t did anything.” But he made no attempt to exculpate himself before the grand jury. Instead, he told the grand jury that his signed statements which were read to him were true. The motion to dismiss and a motion to suppress the confessions were denied. In Moon v. United States, 115 U.S.App.D.C. 133, 317 F.2d 544 (1962), no timely motions were made. . Cf. Gideon v. Wainwright, 372 U.S. 335, 343, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). . Short never saw this lawyer again. Cf. Trilling v. United States, 104 U.S.App. D.C. 159, 177-178, 260 F.2d 677, 695-696 (1958). . The New York courts have long held that counsel must be available whenever the accused is questioned after indictment. People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825 (1960); People v. Waterman, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445 (1961). . Judge Wright would dismiss the indictment for the following reason: where, as here, an uncounseled accused, charged and held for the grand jury, is interrogated before the grand jury considering his indictment, that grand jury is without jurisdiction to indict the uncounseled accused. Compare Johnson v. Zerbst, 304 U.S. 458, 467-468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). . Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950). That an indictment cannot be challenged on the ground that inadequate or incompetent evidence was presented to the grand jury, Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956), is irrelevant here, since admission of such evidence violates no constitutional right. . Lawn and Costello are discussed in a Note, 111 U. of Pa.L.Rev. 1154, 1159-1163 (1963). . Judges Washington and McGowan add the following: We believe that the taking of this particular defendant before the grand jury, without his first having had the benéfit of consultation with counsel, was extraordinary in its disregard of the realities of his situation, as well as of the customary practice. By the same token, it is hardly extraordinary for this court, vested as it is with responsibility for the supervision of criminal justice in this circuit, to hold that there was a defect in the administration of justice in this instance which warrants our intervention. The question then becomes the familiar, and perennially difficult, one of the sanction to be imposed if our supervisory power is to be at all meaningful. We have fixed upon a sanction more limited than automatic dismissal of the indictment without reference to the precise state of the evidence before the grand jury. We have thought it sensible to have the District Court in this situation inform itself fully and accurately as to what the evidence was upon which the indictment can be said to have rested, and then to decide whether there was a foundation for it apart from that supplied solely by means of the defendant’s personal appearance before the grand jury. We are not unimpressed by the contention that, in light of the handling by defense counsel of the motion to dismiss the indictment, the District Court acted reasonably, considering that the position we now take has not heretofore been clearly articulated in this jurisdiction. However, we believe that, on the facts of this case, the interests of justice would have been better served if the trial judge had, irrespective of the positions taken by counsel, informed himself exactly of what happened before the grand jury and then disposed of the motion in the light of that knowledge. In cases arising from such indictments in the future, this procedure should be followed.
PRETTYMAN, Senior Circuit Judge (dissenting): Judge Edgerton’s opinion is divided into parts (I to VI), and this dissent will follow that same format. However, before discussing Point I, I advert to the facts. I am deeply disturbed because it seems to me that the brief résumé contained in the majority opinion does not describe the case shown by the record. Facts About a year and a half before the events in the District of Columbia with which we are concerned, a North Carolina warrant issued (on March 6, 1961) in the Recorder’s Court of Zebulon, Wake County, North Carolina, for the arrest of one Willie Lee Short upon a charge of assault with a deadly weapon, alleged to have occurred in that County. Deputy Sheriff Blakeley knew the Short family and attempted to execute the warrant but failed to find the accused except upon one occasion when Short fled in a car. On August 10, 1962, almost a year and a half after the foregoing, a warrant was issued by the Municipal Court for the District of Columbia for the arrest of Willie Lee Short upon a charge of attempted robbery allegedly committed in Washington on August 3, 1962. Detective Sergeant O’Bryant, of the Metropolitan Police, who obtained the warrant, teletyped police in North Carolina and Virginia giving the names and addresses of Short’s relatives in North Carolina. On August 13, 1962 (the same month) another warrant, alleging the robbery on July 28th of a liquor store in the District of Columbia, was issued by the Municipal Court here. It called for the arrest of one David Jones, said to be from Zebulon, North Carolina. Two days later Jones gave himself up and was subsequently bound over to the grand jury. Sometime early the next month, i. e., in September, Deputy Sheriff Blakeley, in Zebulon, North Carolina, received information that Short was at a given address in Raleigh. A couple of days later (Thursday, September 13, 1962) Raleigh police officers went to the given address with a copy of the Wake County warrant; Short went out the rear door but was apprehended, and the officers radioed Sheriff Blakeley in Zebulon. Blakeley told them that Short was also wanted in Washington, D. C. Some difficulty in locating the teletype ensued, but the following morning O’Bryant confirmed to a Deputy Sheriff Kelly that Short was wanted here and inquired whether he would “waive extradition”. Kelly talked to Short, read the extradition document twice to him, told him he did not have to sign if he did not want to, and explained the procedure. Short said he would “come back here” and signed the waiver of extradition. O’Bryant flew to Raleigh the next morning, Saturday, September 15th, arriving at about ten o’clock. It took a short while for him to get to the sheriff’s office and for Short to be brought from his cell. O’Bryant noted on the warrant: “Arrested 9-15-62 10:30 AM Sheriff’s Office, Raleigh, N. C.” O’Bryant told Short he need not give a statement and that if he gave one it could be used against him. Sheriff Scarborough was present and heard O’Bryant so advise Short. O’Bryant then inquired about several robberies, four in all, and Short denied knowledge of any of them. The officer then described to Short the evidence the police had against him. They had Short’s fingerprints in the grocery store. David Jones had turned himself in. The police had Jones’s shoes, later identified by a witness as the shoes worn by a participant in the robbery. They had the shotgun obtained from an alleged accomplice’s apartment on a search warrant. O’Bryant testified, “I informed him of * * * some of the evidence that we had and at that time he said, ‘Well, I may as well tell you the truth about it,’ and he told me.” O’Bryant further said, “Yes, I would say within an interval of two minutes or three minutes.” The trial court found: “Officer O’Bryant testified, and I believe him, that this man confessed to him in Raleigh because he said he wanted to give him the whole story. When he found out that there was other evidence, he gave the whole story because he wanted to get it off his chest * ' * O’Bryant obtained a typewriter and typed Short’s answers into statements. The first statement concerned the attempted robbery of the grocery store. It was begun at 12:30 p. m. and concluded at 1:03. Short implicated David Jones and one Johnson in whose apartment the gun had been found. The second statement was begun at 1:10 and concluded at 1:40. It concerned the liquor store robbery, and Short implicated David Jones, Arthur Jones (David’s brother), and a man named Johnson. Two more statements concerning robberies not in the cases at bar followed. The last one was finished sometime during the afternoon. O’Bryant did not ask Short to sign the statements upon their completion, because he had discovered that Short did not read well and, O’Bryant testified, he knew police had been accused of forcing defendants to sign statements and he and Short were alone at the time. He therefore asked to have Short’s family come in. About eight o’clock that evening Short’s wife, his sister, and the latter’s fiance came to the Sheriff’s office. O’Bryant explained that he was going to read some statements and, if anything he read was not true, they were to interrupt and say so. O’Bryant read the statements; nobody interrupted; and O’Bryant asked Short if the contents of the statements were true. He answered they were. Then Short, his sister, and the latter’s fiance all signed the statements. On Sunday morning, September 16th, O’Bryant and Short boarded a plane for ■ Washington. En route O’Bryant talked to Short about whether he wanted to testify before the grand jury; Short said he wanted to tell the truth about the whole thing; and he (O’Bryant) said that provision could be made. They arrived in Washington about noon. The record does not indicate that Short was questioned or otherwise subjected to any procedure, except routine booking, etc., that afternoon or evening. On Monday morning, September 17th, at ten o’clock, Short was presented to a judge sitting in the Municipal Court. A lawyer was appointed, and Short talked briefly to him, telling him he (Short) had signed statements in North Carolina “to come back to Washington, D. C.” Hearing was waived, and Short was bound over to the grand jury. On October 2nd Short was taken before the grand jury. The transcript of that hearing showed that the prosecutor said to Short, and Short answered: “Question: Mr. Short, I want you to know that you are before the Grand Jury and that we are going to ask you some questions. I want you to know you don’t have to say anything here if you don’t want to. You don’t have to tell us anything. If you do tell us anything your statement is being taken down and can be used against you at any future trial arising out of any other matters that we talk about here, or any other matters. Do you understand that? “Answer: Yes. “Question: Knowing that you still want to come in here and testify? “Answer: Yes.” The statements made by Short in North Carolina, witnessed by his sister and her fiance, were read to Short before the grand jury, and he was asked if they were true. The transcript shows he answered, “Yes.” On the stand upon the hearing Short said he answered, “No.” On October 8th Short, Johnson, and David Jones were indicted for attempted robbery of the grocery store and, together with Arthur Jones, for robbery of the liquor store. On arraignment Short pleaded not guilty. On November 21st Johnson turned himself in and became a witness for the Government in both cases. He pleaded guilty in one ease, and the other indictment was dismissed as to him. Motions to suppress the confessions and to dismiss the indictments were made, heard and denied. Trial on the robbery of the liquor store was had on December 12th to 19th, and trial on the attempted robbery of the grocery store began January 15, 1963. Besides other evidence, such as fingerprints, the shotgun, and, in one case, identification by the victims, the Government presented Johnson as a witness in both cases, and it presented the written statements made by Short in North Carolina. The defense put Short’s sister and her fiance on the stand. The juries returned verdicts of guilty in both cases. The appeals now before us are the consolidated appeals from those convictions. I. Admissibility of Statements A. The court holds Short’s statements to O’Bryant to have been inadmissible under the McNabb-Mallory rule, citing also Upshaw. Upon the facts in the record now before us, no point is presented within the doctrine of McNabb-Mallory-Up-shaw. That doctrine is that “a confession is inadmissible if made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate.” The heart of the doctrine is a delay under federal detention, — not merely delay but delay during detention. The purpose of the doctrine is to require federal officers, over whom the Court has supervisory power (the doctrine is not a constitutional principle), to obey a Rule. The remedy provided by the McN abb line of cases is applicable to confessions made while a federal officer is illegally withholding a prisoner from presentment. In the cases at bar there was no detention, no holding in custody, by any federal or District of Columbia officer at the time these confessions were made. Short was in the custody of a North Carolina sheriff, being held under a serious charge of violation of a North Carolina law. My brethren spell a custody on O’Bryant’s part from his notation at the time on the warrant, a matter I shall discuss in detail in a moment. There is no shred of evidence that the North Carolina sheriff turned Short over to O’Bryant with permission to take him to a federal magistrate with authority to set him free. And it is fantastic to assume that the sheriff had any such idea. O’Bryant could not have terminated Short’s detention, no matter what he (O’Bryant) did. There simply was no detention by federal authority at that point. The Supreme Court has met this point squarely, succinctly and clearly. The Second Circuit had the question in United States v. Coppola. Buffalo city police had Coppola under arrest for a series of state offenses. FBI agents interrogated him about a bank robbery. He confessed to them. After noon the next day the Buffalo police turned him over to the federal officers, and he was duly presented. The Second Circuit, sitting en banc, held the confessions admissible — “uncoerced confessions made during a detention by state officers which the Federal officials did not induce and were powerless to prevent.” The Supreme Court granted cer-tiorari, heard argument, and then in a one-paragraph Per Curiam opinion affirmed the Circuit. The question now before us is precisely the question in Coppola. It may be that a rule ought to be announced that a confession to a federal officer, made while a person is in the lawful custody of state officers under a state charge, is inadmissible in a federal court. But that would be a new rule. It would not be under the McNabb-Mallory doctrine; no court has ever as yet announced such a rule; and it would be in exact contradiction to the Supreme Court decision on the subject. B. Regardless of the foregoing, Short’s statements were admissible. Short confessed orally to O’Bryant within two or three minutes after O’Bryant, who had just arrived in Raleigh by plane from Washington, began to talk.to him. Some conversation ensued. O’Bryant was interested in a series of robberies — four at the moment. Then, on borrowed equipment, O’Bryant typed out the statements. As heretofore stated, the first typing was begun at about 12:30 and was completed at 1:03 o’clock. The court says that the time of the confession, for the purposes of the Rule, was 12:30 and that the time from 10:30 to 12:30 was unnecessary delay. We have had this problem a number of times. We had it in Metoyer, in Heideman,’ in Porter, in Jackson, and in Muschette. We have never, until now, so far as I can ascertain, held that a “threshold” confession is inadmissible because of some later minor delay in understanding the details and reducing them to writing. The court is now writing new law on this point. The court says it does not now overrule the cited cases. Such being the situation, I submit that the court ought to follow the cases, whether some members disagree with them or not. The case at bar is an even more vivid illustration of the principle involved than are the cases cited. Here the oral confession was made “within * * * two minutes or three minutes”; several offenses and a complicated set of facts were involved; four participants were involved, not all of them in all of the crimes. The inquiring officer was alone, was in strange territory, and had to use borrowed equipment. C. The court rests its ruling on this point upon a failure by O’Bryant to take Short before a United States Commissioner or a judge in compliance with Rule 40(b). To make this ruling the court was required to find an unnecessary delay after Short was arrested and before he confessed. In other words, the confession must be due to an illegal detention during an unnecessary delay. The court says Short was “arrested” at 10:30 Saturday morning. It bases this finding solely upon the fact that O’Bryant wrote “Arrested 9-15-62 10:30 AM” on the warrant he had with him. Of course what O’Bryant meant was that he read the warrant to Short or served a copy upon him. That is “arrest” in normal parlance. The notation had nothing whatsoever to do with a transfer of custody. But in the circumstances of this case delay on O’Bryant’s part must be measured by a period of actual custody. O’Bryant’s delay could not begin until he had control over the prisoner. He had no inherent control over Short; he needed the permission of state officials who were holding Short on a state charge. My brethren say there is no evidence that Short became O’Bryant’s prisoner later than the 10:30 mentioned. That is a pure speculation, if “prisoner” means one in custody. And the speculation is unrealistic. The hour of 10:30 was a very few minutes after O’Bryant’s arrival at the sheriff’s office, he having touched down at the airport at about ten o’clock. The sheriff was not holding Short for O’Bryant. He was holding him on his own account for a serious offense in North Carolina. The object of Rule 40(b) is to obtain a warrant for removal to another jurisdiction. In this respect it differs from Rule 5(b), which results merely in a holding of the accused in the same jurisdiction. The North Carolina sheriff, in yielding custody of Short, would have been yielding him for removal out of North Carolina. Furthermore Rule 40 (b) requires that when a warrant of removal is issued “the defendant shall be admitted to bail”. So the sheriff would have been yielding Short for admission to bail. In addition to these considerations there is the delicate relationship between state and federal authority in criminal cases. That this relationship is not one of unalloyed mutual love and affection is one of the better known facts of judicial administration in our day. There is no evidence that the sheriff would have released custody at any time prior to the time he did actually make the release, i. e., when O’Bryant was en route to the plane. My brethren say there is no evidence to the contrary; therefore they assume the sheriff would have— indeed that he did — turn Short over to O’Bryant about noon on Saturday, with permission to get a warrant of removal and bail. I think we cannot reverse convictions by speculating facts not in the record before us. And I think the speculation in this case is totally unrealistic. Every consideration obvious on the record indicates that the sheriff would — as he actually did — move with some degree of deliberation. An instantaneous transfer of uninhibited custody to a strange out-of-state officer under the facts of this case seems to me to be beyond the realm of permissible unsupported inference. The sheriff actually released Short to O’Bryant on Sunday morning. The confessions had been given, typed, read to the family, and reaffirmed in their presence. There was no delay on O’Bryant’s part prior to those events. Delay thereafter, if any, was immaterial. D. Other considerations are pertinent: (a) I emphasize as vehemently as I can that there is a duty — a positive, affirmative duty — to ask a suspected person, before he is presented to a magistrate under a solemn formal charge, whether he knows anything about the alleged offense. To my mind the contrary is the essence of the so-called police state. That would really be police tyranny. (b) The typing of a purported confession is a protection to the accused as much as it is a weapon for the police. Understanding of oral expressions is often uncertain, recollections are frequently inexact, and memory is characteristically faulty. But with a writing an accused can be charged with no more than, and nothing else but, what he said. Exemplary police procedure requires the reduction of confessions to writing. This requires the facts to be sorted and the statement of them to be accurate. And that takes a bit of time. (e) The warrant O’Bryant had with him was not a federal warrant. It was issued by our Municipal Court and had the status of a state warrant, good only in the jurisdiction of issue. Moreover O’Bryant was not a federal officer but a Metropolitan policeman, having the status of a sheriff or other state officer. He had no authority to make an arrest in North Carolina. (d) There is no evidence or semblance of evidence — and indeed no claim — that Short was subjected to any form of coercion or to extended questioning for the purpose of obtaining a confession. Lieutenant O’Bryant’s conduct was characterized by all concerned on the scene at the time, including members of Short’s family, as exemplary; he, a Negro officer, was “rather nice to Willie.” My view is that his conduct throughout deserves hearty commendation. (e) Short was repeatedly told before he spoke that he need not make a statement and that if he made one it could be used against him. He was warned. Nevertheless he talked; he had a right to, as I understand the law. II This question is whether the admission of Short’s confession, with all other names deleted, was reversible error in respect to all other defendants. Short’s confessions were introduced in each trial in which he was a defendant, with the names of his co-defendants deleted. In the robbery trial the jury was cautioned by the trial judge, immediately before the confession was read to them, that the confession represented evidence against Short only and was not to be considered against David and Arthur Jones. Further admonitions to this effect were included in the court’s charge to the jury at the close of the case. Similarly, in the attempted robbery trial, the jury was cautioned by the trial judge, immediately after the confession was read to them, that the confession was evidence against Short only; the instruction was also repeated at the end of the case. In each instance counsel for the defense expressed satisfaction with the instructions as given. The course followed by the trial judge, deleting the names of the co-defendants and twice in each case admonishing the jury on the point, was in accordance with established practice in federal courts. Sitting en banc we specifically referred to the rule with approval as recently as January, 1963, in Dykes v. United States. Implicitly we