ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS, DIVISION OF ST. CROIX.
Seitz, Chief Judge, Van Dusen and Gibbons, Circuit Judges.
Appeals are taken here from defendants-appellants' conviction, after trial to a jury in the District Court of the Virgin Islands, and sentencing for murder, assault and robbery*fn1 and from denial of their motion for a new trial. Because the factual basis for the appeals is somewhat complex, we will elaborate the facts, as relevant, in our discussion of the various issues raised by defendants and set forth here only those facts necessary to a basic understanding of this case.
On the afternoon of September 6, 1972, a group of young men entered the clubhouse area of the Fountain Valley Golf Course in St. Croix. Sixteen persons, including guests and staff, were in the clubhouse area at that time. The intruders, armed with a variety of weapons including a machine gun and shotguns, took cash from a clubhouse shop and snack bar, robbed some of the guests and killed eight persons. Four others were wounded while trying to escape and the remaining four were able to escape unharmed. The survivors reported seeing various numbers of gunmen, agreeing that the men wore masks and fatigue-type shirts and perhaps also fatigue pants.
Prior to the incident at Fountain Valley, arrest warrants had been issued for three of the defendants in this case, Ishmael La Beet, Warren Ballantine and Raphael Joseph, on charges including first degree assault, simple assault and battery, and failure to appear in court after release on bond. La Beet, Ballantine and Joseph had reportedly been seen in the general vicinity of Fountain Valley wearing fatigue shirts, a short time before the crimes with which they are charged here took place. The three immediately became suspects. Police also sought associates of La Beet, Ballantine and Joseph for questioning, among them the remaining defendants in the case, Meral Smith and Beaumont Gereau, who were seen with the trio the night before and afternoon of the Fountain Valley killings.
During the week following the killings, Virgin Islands police working with agents of the Federal Bureau of Investigation arrested all five of the defendants and seized all the weapons used in the killings along with articles of clothing identified as having been worn by the gunmen and various items taken from guests at the time of the shootings. Before dealing with the defendant's specific contentions, we will summarize the series of arrests, searches and confessions that produced the bulk of the evidence introduced at trial and all of the evidence use of which is challenged by defendants.
Early on September 7, Smith was arrested at 160 Estate Grove Place, where he had been observed little more than a day earlier with the other defendants. Police engaged in a warrantless search of 160 Estate Grove Place, at the time of Smith's arrest and again a few hours later. On September 8, a police officer attempting to locate another associate of defendants, one McIntosh, got into an altercation with yet another young man who answered the door at 46 Prince Street, Fredriksted, in front of which McIntosh had been seen earlier. The fight between the police officer and the young man started at the front door and progressed through the house, ending in a room which Gereau had taken refuge. The policeman arrested Gereau, who he believed was wanted for failure to appear and answer to an assault charge. Later that day, police returned to and, with the owner-occupant's consent, searched 46 Prince Street. On September 8 and 9, after questioning, Smith and Gereau gave statements to F.B.I. agents regarding their and the other defendants' participation in the Fountain Valley incident. Also on September 9, agents and police conducted a warranted search of 160 Estate Grove Place. Late in the afternoon of September 9, Smith and Gereau were arraigned.
Warrants issued on September 10 for the arrest of defendants La Beet, Ballantine and Joseph for murder, robbery and assault at Fountain Valley. Warrants also were issued for the arrests of two described and partially named Puerto Ricans implicated in the statements given by Smith and Gereau. The three defendants were arrested during the afternoon of September 12 at 527 Hospital Street, Fredriksted. F.B.I. agents and police searched the Hospital Street premises, with a search warrant, at the time of defendants' arrest and again, with a warrant, a few hours later. Statements regarding their participation in the Fountain Valley killings were given by La Beet, prior to the second Hospital Street search, and by Ballantine and Joseph on September 12 before their arraignment that evening. On September 14, Gereau gave another statement, later suppressed, admitting that the two Puerto Ricans he and Smith had implicated in the crimes were fictional.
Before trial, defendants moved to suppress the statements given by them and the evidence seized in the searches noted above. The District Judge suppressed the statements given by defendants Smith and Joseph, finding that they had requested to see a lawyer and were denied an opportunity to do so until, after further questioning, their statements were obtained.*fn2 The district court also suppressed Gereau's statement of September 14, which was not immediately preceded by warning Gereau of his right to have counsel present. In all other respects the motion to suppress was denied. Crim. No. 97/1972 (D.V. I. July 23, 1973). Defendants contend that the Court erred in denying suppression of other statements and tangible evidence. We turn now to those contentions.
Statements of Gereau, La Beet and Ballantine: Brutality Claims
The first line of attack on admission of statements by defendants, Gereau, La Beet and Ballantine is the defense claim that the statements were obtained as a result of brutal police treatment. Defendants allege that they were beaten, shocked with electric shock batons, burned with cigar stubs, partially suffocated by police placing plastic bags over their heads and by covering their mouths while dripping water into their nostrils, hung from certain trees, and otherwise mistreated. Testimony by various witnesses is pointed to by defendants as supporting portions of defendants' testimony regarding police brutality directed at them. They admit that a wealth of conflicting testimony was introduced by the government and that defendants' testimony along with the testimony relied on by defendants as corroborating their stories was found by the District Judge not to be credible. Defendants contend, however, that the court below used improper legal standards to judge credibility.
It is the law of this Circuit, as well as many others, that a fact-finder's determination of credibility is not subject to appellate review. United States v. Brown, 471 F.2d 297, 298 (3d Cir. 1972); United States ex rel. Tillery v. Cavell, 294 F.2d 12, 22 (3d Cir. 1961), cert. denied, 370 U.S. 945, 82 S. Ct. 1589, 8 L. Ed. 2d 811 (1962); see e.g., United States v. Owens, 472 F.2d 780, 784-85 (8th Cir. 1973); Wilkin v. Sunbeam Corp., 466 F.2d 714, 717 (10th Cir. 1972), cert. denied, 409 U.S. 1126, 93 S. Ct. 940, 35 L. Ed. 2d 258 (1973). Credibility determinations may be influenced by factors such as a witness' demeanor, his tone of voice and other matters not subject to appellate scrutiny. For this reason, credibility determinations are uniquely the province of the fact-finder. Assuming, however, that we can separate the standards employed to make such determinations from their application to decide credibility, we find no error in the District Judge's selection of those standards. The court below found, on the basis of a horticultural expert's testimony, that defendants could not possibly have been "hung " as they claimed from any of the trees in the area where the hangings allegedly took place; defendants' testimony, found false in this respect, was then discounted by the judge with respect to other matters, as to which the judge also found their accounts to be inherently incredible in various respects. We find no error in this. Defendants assert that the judge should have discounted testimony of police and F.B.I. agents because suit had been filed against them for violation of defendants' civil rights. Mere pendency of such a suit, however, cannot be viewed as grounds for discounting agents' testimony as biased. Defendants challenge the lower court's credibility determinations on numerous other grounds less substantial than those set forth above; we have considered their contentions and find it unnecessary to treat the additional claims separately.*fn3
Accepting the district court's credibility determinations, we cannot say its finding that the statements by Gereau, La Beet and Ballantine were not products of police brutality is clearly erroneous. See Krasnov v. Dinan, 465 F.2d 1298, 1302-O3 (3d Cir. 1972); United States v. Archie, 452 F.2d 897, 898-99 (3d Cir. 1971) (per curiam), cert. denied, 405 U.S. 1071, 31 L. Ed. 2d 804, 92 S. Ct. 1521 (1972). This is particularly so in light of defendants' burden in support of their suppression motion to show by a preponderance of the evidence that the Government engaged in illegal acts. See United States v. Lyon, 397 F.2d 505, 508 (7th Cir.), cert. denied, 393 U.S. 846, 89 S. Ct. 131, 21 L. Ed. 2d 117 (1968); United States v. Masterson, 383 F.2d 610, 614 (2d Cir. 1967), cert. denied, 390 U.S. 954, 19 L. Ed. 2d 1147, 88 S. Ct. 1048 (1968). We therefore reject defendants' contention that their statements should have been excluded as the products of police brutality.
Statements: Presentment Delay
Defendants next contend that the statements given by Gereau, Ballantine and La Beet should have been suppressed because defendants were not presented to a magistrate within six hours of their arrests. This argument rests on the interpretation of Rule 5(a) of the Federal Rules of Criminal Procedure*fn4 adopted in Mallory v. United States, 354 U.S. 449, 1 L. Ed. 2d 1479, 77 S. Ct. 1356 (1957).
Mallory interpreted Rule 5(a) as allowing "arresting officers little more leeway than the interval between arrest and the ordinary administrative steps required to bring a suspect before the nearest available magistrate. " 354 U.S. at 453. After Mallory, and before commission of the offenses with which defendants are charged here, the Omnibus Crime Control and Safe Streets Act of 1968 was enacted, including a provision expressly designed to provide a test different from Mallory's for judging the admissibility in federal criminal prosecutions of confessions given during the period between arrest and arraignment before a magistrate. See 1968 U.S. Code, Cong. & Ad. News 2112, 2123-27, 2141, 2216, 2240. If that provision, codified as 18 U.S.C. § 3501 (1970), is applicable to the Virgin Islands, it must control the admissibility of the statements challenged here. Defendants, however, dispute § 3501's applicability to trials for local crimes in the District Court of the Virgin Islands.
Rule 54(a) makes the Federal Rules of Criminal Procedure applicable to all criminal proceedings in the District Court of the Virgin Islands, and the Rules have been held to apply even in prosecutions for local crimes. Government of the Virgin Islands v. Solis, 334 F.2d 517, 519 (3d Cir. 1964). The Rules explicitly recognize that the admissibility of evidence in cases governed by the Rules is subject to determination by acts of Congress. Fed. R. Crim. P. 26. Thus, 18 U.S.C. § 3501 controls the admissibility in prosecutions subject to the Federal Rules, of defendants' statements made after arrest and before presentment to a magistrate, and must be viewed as altering interpretation of Rule 5(a)'s direction that an arrested person be taken before a magistrate "without unnecessary delay. "*fn5 Defendants, however, note that § 3501 is made applicable expressly only to prosecutions by the United States and the District of Columbia. We have found no indication in the legislative history of the Act that Congress intended § 3501 to be inapplicable in criminal prosecutions in the Virgin Islands and, in light of the Federal Rules' applicability to proceedings in the District Court of the Virgin Islands, find it more plausible that Congress intended conformity with the rule announced by § 3501 in all prosecutions subject to the Rules than that the language noted by defendants was chosen to distinguish prosecutions by the Virgin Islands from Prosecutions by the listed jurisdictions.
Section 3501 provides that confessions are admissible if voluntarily given and that in determining voluntariness the trial judge shall take into consideration all relevant circumstances including the time between arrest and arraignment (where, as here, the challenged statements were made within that time), whether defendant knew he was suspected of the crime concerned when he made his statement, whether defendant was informed that he was not required to make a statement and that he had a right to counsel. 18 U.S.C. § 3501(a) and (b) (1970). The section then declares that a statement shall not be inadmissible solely because of delay if (1) the trial judge finds the statement to have been made voluntarily, (2) the weight to be given the statement is left to the jury, and (3) the statement was made within six hours of arrest, noting further that a statement after more than six hours following a defendant's arrest shall not be excluded if the delay beyond six hours was reasonable considering the means of transportation available and distance to the nearest magistrate. 18 U.S.C. § 3501(c) (1970).
In admitting statements by La Beet, Ballantine and Gereau, the District Judge expressly found them to have been made voluntarily. All three defendants were advised of their rights before questioning and before making their statements. The District Judge found that the Government had satisfied its burden of showing that defendants had waived those rights, and defendants have not demonstrated that this finding was clearly erroneous. The judge also noted that the defendants were not questioned continuously for long periods; they were given food and drink on request and when Gereau indicated he was tired, he was allowed to sleep overnight before questioning resumed the next morning. La Beet's statement was started and completed within six hours of his arrest and Ballantine's statement was begun within six hours of his arrest. One statement of Gereau's was given well within the six hour period although his statements on September 9 were not. In light of the surrounding circumstances, we find no clear error in the district court's decision that the challenged statements were given by defendants voluntarily. See United States v. Moore, 453 F.2d 601 (3d Cir. 1971), cert. denied, 406 U.S. 925, 32 L. Ed. 2d 126, 92 S. Ct. 1794 (1972).
Defendants, however, contend that since La Beet, Ballantine and Gereau were not arraigned until more than six hours after arrest and the delays were not related to difficulties in transporting defendants to a magistrate, § 3501(c) requires their statements to be excluded. We reject this contention. The express declaration of § 3501(c) makes clear that a statement voluntarily given within six hours of arrest is not excludable because of delay in presentment after the statement was given. United States v. McCormick, 468 F.2d 68, 74 (10th Cir. 1972); see United States v. Mitchell, 322 U.S. 65, 70-71, 88 L. Ed. 1140, 64 S. Ct. 896 (1944). The section makes admissible voluntary statements, given within six hours of arrest, and the weight of which is left to the jury. These statements, excepting Gereau's statements of September 9, meet all three requirements and thus are admissible. We cannot alter the section's clear statement to that effect by negative implication from its proviso that presentment delays of more than six hours shall not make statements excludable if reasonable in light of transportation difficulties. Nor can we find that the negative implication defendants draw from § 3501(c)'s proviso, that statements given before presentment but more than six hours after arrest must be excluded unless due to transportation problems, renders Gereau's September 9 statements inadmissable. Section 3501 makes admissibility of confessions dependent on their voluntariness. Delay in a defendant's presentment to a magistrate is only one factor relevant to voluntariness. 1968 U. S. Code, Cong. & Ad. News 2127. Section 3501(c) modifies the trial judge's freedom to determine voluntariness by stating certain instances in which the judge cannot on the basis of delay alone find a statement to have been involuntary. Statements not within the categories defined in § 3501(c) are not excluded but instead their admissibility is determined by the general standard of voluntariness set forth ...