Rehearing and Rehearing En Banc Denied December 22, 1971.
CLARK, Circuit Judge:
Viewing the evidence in the light most favorable to the government, as we must, discloses that the route that led to the present Dyer Act conviction of Trully Junior Hathorn originated on a stretch of lonely highway outside Philadelphia, Mississippi when a 1967 Pontiac driven by Hathorn crashed into the rear of a 1966 Mustang operated by Betty Jane Price. After the accident, Hathorn commenced to walk down the highway toward Philadelphia and away from the scene of the accident. Mrs. Price described the miscreant to the Highway Patrolman first on the scene as a Negro male wearing a green shirt. This patrolman radioed her brief description to a fellow patrolman, Smith, who, fortuitously, looked up to see Hathorn, a Negro male then wearing a green shirt, about 100 yards from his position. Smith stopped Hathorn and asked if he had been involved in an accident, to which Hathorn answered in the affirmative. Smith then requested Hathorn to accompany him back to the scene of the accident, and Hathorn complied. Immediately upon arriving at the scene, Smith took down the car tag number of the Pontiac and upon checking it with the National Crime Information Center, was advised that the car had been stolen in Illinois. Smith arrested Hathorn for driving under the influence of intoxicating beverages and leaving the scene of the accident and placed him in the Philadelphia jail. Since it appeared an interstate matter could be involved, the Federal Bureau of Investigation (FBI) was called. The next morning, after receiving his Miranda warnings from the FBI and executing a waiver of rights form, Hathorn confessed to having knowingly driven the stolen car from Chicago, Illinois to Mississippi.
After a trial to a jury, Hathorn was convicted of transporting a stolen motor vehicle in interstate commerce, knowing the same to have been stolen, in violation of 18 U.S.C.A. § 2312 (1970). He was placed in the custody of the Attorney General for a period of four years. Hathorn first argues that his arrest was illegal under Mississippi law, and that all information gained by the exploitation of that arrest should have been suppressed. He argues that his arrest was effected at the time Patrolman Smith asked him to get into the patrol car, and at that time since no misdemeanor was being committed in the officer's presence and no probable cause existed to believe a felony had been committed, his arrest was beyond the officer's statutory prerogative.
During the course of the trial, the district court allowed the confession made to the FBI to be admitted into evidence without holding the required extrajury Jackson v. Denno hearing. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) and 18 U. S.C.A. § 3501 (1969). Upon realizing his mistake, the District Judge conducted the required hearing at the end of the presentation of all evidence but before the case was submitted to the jury. Hathorn contends that this procedure was insufficient to cure the earlier error. We decline to so rule. Although we can find no case squarely in point and have been cited to none, that which occurred here does not differ in legal principle from the situation presented to the Supreme Court in Jackson v. Denno. The Supreme Court did not void Jackson's conviction for the lack of a hearing but remanded the cause to the trial court with directions to hold a hearing on the voluntariness of the confession. The Court expressly stated that the defendant did not have to be retried if the confession was found to be voluntary. Obviously if the hearing disclosed voluntariness, such a finding rendered any defect in the prior proceedings harmless.
Hathorn relies heavily upon Schaffer v. United States, 221 F.2d 17 (5th Cir. 1955). In that case, however, the trial judge, although willing to let the defendant testify as to voluntariness outside the presence of the jury, had earlier ruled that the confession was voluntary as a matter of law and indicated he had no intention of changing his mind. This Court correctly ruled that the gesture of the trial judge in going through the motions of the voluntariness hearing was sheer formality. Unlike the trial judge in Schaffer, the judge in the case sub judice accorded the defendant his full Jackson v. Denno rights. We certainly assume that he would have changed his ruling on voluntariness if the evidence had been such as to indicate the confession was in any way coerced. The record discloses that the hearing was full and fair and in no sense a formality.
Most important, Hathorn has shown no prejudice flowing from this belated procedure. The core of the issue was the voluntariness vel non of Hathorn's act in confessing his guilt. Since the trial judge determined, albeit late, that the confession was voluntary, the fact that the confession was heard by the jury resulted in no prejudice to Hathorn. The jury was entitled to hear this evidence. Certainly the proceedings had not reached an irremedial stage at the time the hearing was conducted since the trial judge could have declared a mistrial had he found the confession involuntary.
Hathorn's contention that the trial judge erred in not requiring all police officers present at his interrogation and subsequent confession to take the stand to rebut his allegations of involuntariness, erroneously relies upon Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 9 L. Ed.2d 634 (1967). There, none of the officers who were present at the time of Sims alleged mistreatment were ever called to testify, either at the original trial or at the subsequent voluntariness hearing on remand. The Court presumed that such a total absence of rebuttal testimony, when its absence had been noted in an earlier appeal and a second chance to produce it had been accorded, lent support to the conclusion that it would not in fact have rebutted Sims' testimony. Sims did not hold that the prosecution must produce all officers present. It stands only for the proposition that the failure to call any officers to rebut the defendant's allegations of coercive conduct justifies a presumption that such rebuttal was impossible. The United States attorney has the duty and
Hathorn next contends that the delay in obtaining the confession made to the FBI and the delay in bringing him before a federal magistrate is violative of 18 U.S.C.A. § 3501 (1969),
No federal charges were lodged against Hathorn and he was not taken before a magistrate for arraignment until five days after he confessed. He remained under state detention during this five-day period. No reason appears in the record for this delay. We conclude that the period between confession and arraignment is, like the period between arrest and confession, no more than an additional factor that the trial judge should consider in his determination of voluntariness. Again we discern no prejudice to Hathorn flowing from the delay. Like the 9th Circuit, we need not decide whether "arrest" or "detention" as those terms appear in Section 3501(c) include State as well as federal custody. Halbert explains in great detail the various extant problems in interpreting Section 3501(c) and fully explicates the various reasons for its holding and our holding. We decline to attempt to embellish upon that opinion.
Immediately after the confession was given, FBI agents went to a local body shop where the Pontiac was stored, secured the owner's permission to search the car, and then, upon searching the car, found a slip of paper with the name and phone number of Hathorn's mother. It is admitted that the agents had no search warrant. The arguments of the parties have largely centered around Hathorn's standing to challenge this search. We find it unnecessary to enter this judicial thicket
The judgment and commitment of the district court is
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
Hathorn correctly points out that in our arguendo assumption concerning his
However, this error does not affect the affirmance of Hathorn's conviction since the legality of that original detention can be upheld upon another basis. The later formal arrest of Hathorn back at the scene of the accident was for driving under the influence of intoxicating beverages. Under all of the facts disclosed by this record, Hathorn could have been arrested at the point and time of his initial detention for the misdemeanor of being drunk in a public place. Miss.Code Ann. § 2291 (1942) states that a person can be guilty of a misdemeanor if he is drunk in a public place in the presence of two or more persons. The Mississippi Supreme Court has held that a highway is a public place within the meaning of this section. See State v. Yearwood, 204 Miss. 181, 37 So.2d 174 (En Banc 1948), and Brown v. State, 231 Miss. 5, 94 So.2d 608 (1957). There were two patrolmen in the car when Hathorn was picked up. Thus all the elements of this offense occurred in the presence of the two officers. This would be a sufficiently related offense to make that detention a legal arrest. See United States v. Atkinson, 450 F.2d 835 (5th Cir. 1971).
The remainder of Hathorn's contentions are without merit. The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.