Waterman, Moore and Hays, Circuit Judges. Moore, Circuit Judge (dissenting).
This is an appeal from an adjudication of juvenile delinquency entered in the United States District Court for the Southern District of New York after a jury trial presided over by Judge Cooper. Appellant was charged in one count with committing an act of juvenile delinquency, 18 U.S.C. §§ 5031-5037, in that he violated 18 U.S.C. § 1708 by having knowingly possessed stolen U.S. mail knowing the same to have been stolen. After the jury's verdict of guilty appellant was committed by the court to the custody of the Attorney General for a period of five years. He is presently serving that sentence at the Robert F. Kennedy Memorial Center, Morgantown, West Virginia.
Appellant contends that his oral admissions made to an Assistant United States Attorney after his arrest and prior to his arraignment were unconstitutionally obtained and that the introduction of these admissions into evidence against him at trial, over his objection, was reversible error. We agree. For reasons to be elaborated later we reverse appellant's conviction and remand the case for a new trial below.
Appellant, a 15-year-old in the ninth grade, was arrested at the scene of a mail theft in the company of his older brother, Milton Gomez, and his brother-in-law, Hector Vega. A government agent, John Hedlund, in the employ of the Postal Inspection Service, testified that at 5:55 A.M. on January 5, 1970, he observed a black sedan occupied by three passengers parked in front of a U.S. mail trailer located near the corner of 37th Street and Broadway, New York City. He saw two of the passengers emerge from the car, walk across the street and enter the lobby of a building. About 10 minutes later the two returned to the sedan, which shortly thereafter was driven down the street and parked in front of another mail trailer located near 7th Avenue. As he started to walk toward the scene he observed three individuals standing on the sidewalk near the door of the mail trailer, and he saw that the door of the truck was open and that sacks of mail were being dragged from the truck to the car. He could not identify appellant as one of those taking part in this phase of the mail theft operation.
As the automobile started to pull away with the mail bags Agent Hedlund moved in, drew his revolver, and called upon the driver to stop. Hedlund then ordered Gomez, who was driving, and appellant, who was "laying on the back seat," to get out of the car and he placed them under arrest. Vega, having fled the scene on foot, ran into Hedlund's partner down the street and he was arrested. Three sacks of United States mail were found in the trunk of the sedan.
Binet, Gomez and Vega were taken by the arresting officers to the General Post Office where the group arrived at approximately 7:00 A.M. The three defendants were first advised of their constitutional rights and were then "processed" by having their pictures taken and their personal data recorded. At about 9:00 A.M. appellant was given an injection of one cubic centimeter of methadone at a dispensary located in the Post Office building. At about 10:00 A.M. the three were taken to the United States Court House and at 2:00 P.M. appellant was interrogated by an Assistant United States Attorney, Jon Sale, in the presence of postal inspector Edward Lyons, an inspector Burke, and a probation officer, James Gannon.
At the trial Inspector Lyons was the Government's only witness to testify about this interrogation, and in answer to District Attorney Sale's questions at trial was about to relate this pre-trial question-and-answer conversation between Sale and Binet when the defense moved to suppress any revelation of the conversation between the juvenile and the prosecutor and called for a voir dire.*fn1 The trial judge excused the jury and after taking testimony from Inspector Lyons and the appellant ruled that testimony relative to the colloquy would be admissible.
Thereupon the jury was recalled and Inspector Lyons testified in open court that Sale informed the defendant that he had the right to have an attorney, to consult with an attorney, and to have the attorney present, and also that if he did not have funds to retain one, one would be appointed to represent him; that Sale asked Binet if he understood all this and that Binet replied that he did. Lyons's further testimony, elicited by Sale, follows:
[Mr. Sale] said, [to Binet] "Understanding your rights as I have explained them to you, do you wish at this time to give me some information about your background and your view of the facts?"
Q. [by Mr. Sale] Inspector Lyons, did the defendant answer that question? A. He did.
Q. And what did he say? A. He said yes.
Q. Did the defendant proceed to give any information about his background? A. He did.
Q. Did the defendant give any statement concerning his version of the facts? A. He did.
Q. Would you tell the ladies and gentlemen of the jury what the defendant said? A. He said that he, Gomez and Vega had discussed stealing mail. He was asleep while they broke into the mail truck. They pulled the three sacks out of the truck. He knew the sacks were stolen. He got out of the car, took one of the stolen sacks and put it in the trunk of the car. He knew it was stolen. He did this, because if he didn't help he wouldn't get any money. He said he was fine, and he understood.
Later that afternoon when the officers had concluded this interview with the lad they took him before a U.S. Commissioner where he was arraigned. Counsel from the Legal Aid Society of New ...