Kaufman, Hays and Marshall,*fn* Circuit Judges.
Currie and Price were charged with interstate transportation of stolen securities in violation of 18 U.S.C. §§ 371 and 2314. After a jury trial lasting ten days they were found guilty along with two other defendants who have not appealed.*fn1 Currie was sentenced to five years imprisonment on each of the five counts on which he was convicted, the sentences to run concurrently. Price was sentenced to eighteen months imprisonment on each of the three counts on which he was convicted, the sentences to run concurrently.
On this appeal Currie attacks the admissibility of evidence as to certain statements allegedly made by him to agents of the Federal Bureau of Investigation after his arrest but before he was arraigned and before he retained counsel. Price relies largely on the claim that admitting this evidence constituted error as to him also.
Currie was arrested by Agent Connors of the Federal Bureau of Investigation between 3:15 and 3:30 P.M. on February 6, 1963.*fn2 He was taken to the office of the Federal Bureau of Investigation, which he reached "sometime after four o'clock."
Agent Connors informed Currie that "he need not make any statement to me, that any statement made could be used in a court of law; that he had a right to consult with his attorney, and he could contact one if he so desired." At this point Currie was allowed to call his mother. He told her "to try to get ahold of Mahoney and see how much he wanted to handle the case and if he is not available to try Doyle." Currie then signed a form which Connors presented to him in which he, Currie, consented to a search of his room. Thereupon Connors and another agent proceeded to question Currie about the negotiation of the securities which were the subject of the charges against him.
Although Currie at first denied any knowledge of the transactions about which the agents were questioning him, he soon admitted his part in the crime and described extensively the activities in which he and others had engaged. This period of questioning lasted about two hours and twenty minutes. It was concluded when Currie noticed that Connors was making notes. Currie said "that he didn't care to discuss the matter any further." Currie was then taken before a commissioner for arraignment.
Price was also arrested. After being informed of his rights, he talked with his lawyer by telephone and announced that he did not care to make any statement. He was immediately taken before a commissioner.
At the trial Agent Connors testified at length as to Currie's inculpatory answers to the agents' questions. The only objection made to this testimony was on the ground of absence of probable cause for the arrest of Currie. (See footnote 2, supra.)
Currie argues that evidence of the inculpatory statements made to the agents was inadmissible because:
(1) The statements were made during a period of unreasonable and unnecessary delay in his arraignment. Rule 5(a), Federal Rules of Criminal Procedure; McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819 (1943); Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479 (1957).
(2) Currie was not properly advised of his constitutional rights as is required by Rule 5(b) of the Federal Rules of Criminal Procedure.
(3) The statements were given when Currie was without the assistance of counsel to which he was entitled under the Sixth Amendment.
(1) The delay of about two hours and twenty minutes in taking Currie before a commissioner was not unreasonable. See United States v. Vita, 294 F.2d 524 (2d Cir. 1961), cert. denied, 369 U.S. 823, 82 S. Ct. 837, 7 L. Ed. 2d 788 (1962); United States v. Ladson, 294 F.2d 535 (2d Cir. 1961), cert. denied, 369 U.S. 824, 82 S. Ct. 840, 7 L. Ed. 2d 789 (1962). There was nothing to indicate that it was unnecessary since there is no claim that a commissioner was available at an earlier time. See United States v. Ladson, supra. Moreover the period between arrest and arraignment was not used to force an admission from Currie, see McNabb v. United States, supra, but to investigate, through the questions directed at Currie, a complicated series of transactions involving a number of people, i.e. to "check their stories, and to run down leads which either confirm or contradict those stories." ...