Friendly, Chief Judge, and Lumbard, Kaufman, Hays, Feinberg, Mansfield, Mulligan, Oakes and Timbers, Circuit Judges. Mansfield, Circuit Judge (dissenting).
Ray Allen Collins was convicted by a jury in the Eastern District of New York and sentenced to 12 years in prison for his participation in the robbery of the First National City Bank in Jamaica, Queens, on September 24, 1970, in which $55,000 was stolen and a bank guard shot.*fn1 He now appeals, urging that his confession made to two FBI agents should not have been introducd into evidence.*fn2 We hold that the confession was properly admitted after the district court had denied a motion to suppress after a pre-trial hearing. Accordingly, we affirm.
The evidence against Collins, apart from the confession, was overwhelming. Collins was tried separately from six other co-defendants. Three of his co-defendants, all participants in the robbery, testified against him. Their testimony showed that Collins, then only 19 years old, was a knowledgeable, full participant in the robbery. Collins was present at the meeting at which the initial plans were made. After this meeting, he obtained stolen license plates to use on a get-away car. During the robbery he went into the bank, armed with a carbine, was present when the guard was shot, and was one of the robbers who took the money from the tellers. Each of the three co-defendants positively identified Collins in court as well as identifying him in photographs taken by an automatic camera during the course of the robbery. Collins neither testified on his own behalf nor presented any evidence.
The robbery took place on September 24, 1970. On October 5, 1970, eleven days after the robbery, acting on an informer's tip, FBI agents and detectives from the 105th Precinct arrested Collins at 3:00 p. m. in Queens County.*fn3 Immediately following his arrest, he was given the Miranda*fn4 warnings: that he had a right to remain silent, that anything he said could be used against him, that he had a right to an attorney and one would be provided him if he were indigent, and that he had the right to terminate any questioning at any time by indicating that he did not desire to answer further questions. Collins was then transported to the 105th Precinct for processing, arriving there at approximately 3:25 p. m. For the next 35 minutes, Collins claimed that he was one James Taylor, but, at 4:00 p. m., he acknowledged that he was Ray Allen Collins.
Having acknowledged his identity, Collins was again given the Miranda warnings, including his right to terminate the interview at any time, and then was asked whether he had had any connection with the bank robbery. Collins replied that "bank robbery was not his stick and that he had had nothing to do with the robberies." No further questions followed. FBI Agent Maheffy testified, "We let him go and sit by himself for the most part . . . when he said it wasn't his stick, he knew nothing about bank robbery, and he didn't want to talk about it."
From 4:00 p. m. until 6:30 p. m., Collins remained in the 105th Precinct where he was routinely processed by the police who had participated in the arrest. No additional interrogation was attempted. Around 6:30 p. m., Collins was transferred by automobile to the FBI's Manhattan headquarters so that he could be processed by the FBI.
The trip from the 105th Precinct to FBI headquarters in Manhattan took from 6:30 p. m. until approximately 8:45 p. m. because of the heavy Monday traffic. It is uncontested that, during the ride, Collins was not interrogated.
On his arrival at FBI headquarters Collins was again given the Miranda warnings, again including his right to terminate interrogation at any time. FBI Agent Landolfi asked Collins certain routine questions as to his age, weight, and condition of health. During this questioning, Collins admitted he was a narcotics user. At the end of the interview, Landolfi finally asked Collins about the bank robbery. Collins answered that he knew there had been "a bank robbery, but he had no knowledge of anyone who had committed the bank robbery." Collins' negative response terminated the questioning. From the time Collins was given the Miranda warnings until he had given his final answer, approximately eight minutes elapsed.
Further processing -- taking Collins' handprints and photographs -- took another 90 minutes, the lapse of time due partly to the fact that a technician had to be called in to put the photography lab, which had been closed for the night, into working order and partly because of the length -- 45 minutes -- of the handprinting procedure. Again, it is uncontested that no questioning took place during this period. Finally, at 10:30 p. m., Collins was transferred to the Federal House of Detention in Manhattan, there receiving, at 11:00 p. m., a narcotic substitute to forestall any possible ill effects caused by his forced withdrawal from heroin.
At 10:00 a. m. the next morning, FBI Agents Neville and Hardin took Collins by car from the Manhattan House of Detention to the United States Attorney's Office in the Federal Courthouse in Brooklyn. The trip took one hour. At the beginning of the ride, Agent Hardin advised Collins of his Miranda rights including his right to halt any interrogation at any time. He then asked Collins if he would like to discuss the bank robbery. Collins responded negatively and, during the remainder of the ride, neither agent attempted to interview him.
On arriving at the United States Courthouse, Neville and Hardin proceeded, with Collins, to Assistant United States Attorney Puccio's office to process the papers necessary to arraignment. Hardin and Neville kept Collins with them because, until after arraignment, he was charged to their custody. Puccio, who was involved in court proceedings that morning, was not in his office when Hardin, Neville and Collins arrived there at approximately 11:00 a. m.
Agent Hardin testified that he felt "in view of the circumstances [of the case], we felt . . . one last try" at a confession was warranted. Asked to explain "the circumstances " Hardin indicated that most of the robbers were still at large and "we were interested in stopping more killings, more bloodshed and more bank robberies, and we felt that he might be able to help us and we would appreciate his cooperation."
Collins was then advised of his Miranda rights, again including his right to discontinue the interview at any time. After listening to a few questions, Collins again indicated that he did not wish to discuss the case. Hardin then ceased questioning Collins, but appealed to him to assist the FBI in catching the members of the gang still at large. Hardin testified, "We told him we feel there is a strong possibility that he may have something to do with it and that we needed -- would like for him to help us or assist us in identifying these people." Collins made no response to Hardin's appeal. When Puccio returned to his office at approximately 11:30 a. m., he gave Collins the Miranda warnings, asked Collins if he wished to make a statement and receiving no answer asked the agents if Collins had made a statement and was told that he had not. Hardin and Neville, with Collins still present, then began to discuss the case with Puccio in preparation for the arraignment, apparently occasionally addressing Collins. At approximately 11:50 a. m., Collins was again asked if he wanted to make a statement. He then confessed his participation in the robbery and described the robbery and the other participants in full detail.
Once Collins made his initial confession, five more hours were spent in having him identify the other robbers from photographs and in obtaining information on future bank robberies planned by the gang. At 5:45 p. m. Collins was arraigned. At arraignment, he was represented by counsel.
Collins now claims that his confession should not have been admitted into evidence since some 21 hours had elapsed between his arrest and his confession and 26 hours between his arrest and his arraignment. Basing his argument on Rule 5(a), F.R.Crim.P., and the line of cases beginning with McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819 (1943) and culminating in Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479 (1957), which prohibit unnecessary delay prior to ...