be traveled to the nearest available magistrate . . . ."
Subsection (c) does not purport to say that a confession "shall" be "inadmissible" when there has been a delay of more than six hours between detention and arraignment. To say that a confession "shall not be inadmissible solely" because of a more than six hour delay is not to say that the confession "shall be inadmissible" because the delay is in excess of six hours.
The reasonable import of the subsection is that the judge is authorized to find the confession inadmissible "solely" because of a delay if it is of more than six hours. But nothing in the subsection mandates that the judge exclude the confession "solely" because of a more than six hour delay. In short, to give the trial judge authority to exclude in reliance "solely" on a delay of more than six hours is not to require him to do so.
This is the effect of the decision of the Court of Appeals for the Second Circuit in United States v. Perez, 733 F.2d 1026 (2d Cir. 1984). In that case the trial court suppressed the defendant's statement on the ground of "unnecessary and unreasonable" delay beyond six hours from the time of arrest. The Court of Appeals held that under 18 U.S.C. § 3501 "a delay of greater than six hours may by itself be grounds for suppression unless the delay is found to be reasonable" (emphasis in original). Id. at 1030.
The court specifically did not hold that delay beyond six hours mandated the trial court to exclude the confession, stating "perhaps it is true that delay alone does not require suppression." (Emphasis in original). Id.
This court declines to suppress the statements made by Eltayib more than six hours before his arraignment. As described above, other factors that the court is required to take into consideration under subsection (b) indicate that Eltayib's statements were voluntary. He knew the nature of the offense of which he was suspected. He was twice advised of his Miranda rights. For reasons already stated the court holds that the statements were voluntarily given.
Even if the court were disposed to consider the lapse of time in isolation from the other factors, the court finds that the delay was reasonable under the circumstances. It is true that the crew of the Blue Crown was being detained in the early morning of July 24, 1991. But during most of that day the agents were preoccupied with confirming whether the vessel was in fact the one that had off-loaded cocaine to the Hunter in the ocean and with moving the Blue Crown to a dock in Salem, New Jersey.
The agents did not deliberately delay arraignment in order to get statements from Eltayib. In fact they received no authorization from the United States Attorney's office to effectuate an arrest until about 10:00 P.M. on July 24, 1991.
Even if the language of subsection (c) without the final proviso quoted above were to be interpreted to require that the court exclude the statement because of the delay in arraignment, the court would find that factor of the delay was far outweighed by other factors and that the delay was reasonable within the meaning of that proviso.
The statements of Eltayib will be admitted, and the court will instruct the jury in accordance with the requirements of 18 U.S.C. § 3501(a).
III. The Photograph Arrays
The court has examined the photograph arrays from which the confidential informant identified three of the defendants.
The court finds that the arrays were not improperly suggestive.
IV. Severance Motions
One of the statements made by Eltayib to the agents was that the crew members had been recruited in Columbia and transported to Venezuela to join the vessel.
The crew members ask for a severance in the event this statement is admitted in evidence. The argument is that, although the statement does not itself identify the other defendants, the jury will inevitably use this evidence against them.
The law is clear that such a statement need not be excluded where it does not on its face expressly incriminate another defendant but becomes incriminating only when linked to other evidence offered at trial. Richardson v. Marsh, 481 U.S. 200, 208, 211, 107 S. Ct. 1702, 1707, 1709, 95 L. Ed. 2d 176 (1987); United States v. Tutino, 883 F.2d 1125, 1134-35 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 110 S. Ct 1139, 107 L. Ed. 2d 1044 (1990). This presupposes an appropriate instruction to the jury that it may consider the statement only against Eltayib.
The court reserves for trial the question of whether the statement should be excluded under Rule 403 of the Federal Rules of Evidence.
The motions of the defendants are denied. So ordered.
Dated: Brooklyn, New York
December 3, 1992
Eugene H. Nickerson, U.S.D.J.
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