CLARK, Circuit Judge.
Relator was convicted of premeditated murder in the Court of General Sessions, New York, on April 16,1959. The highest court of that state denied his appeal without opinion, People v. Glinton, 8 N.Y.2d 742, 201 N.Y.S.2d 336, 167 N.E.2d 741, remittitur amended, 8 N.Y.2d 849, 203 N.Y.S.2d 898, 168 N.E.2d 704, and the United States Supreme Court denied certiorari, Mr. Justice Douglas dissenting, Glinton v. New York, 364 U.S. 853, 81 S.Ct. 96, 5 L.Ed.2d 77. The case is here on appeal from the dismissal of the writ of habeas corpus attacking that conviction, United States ex rel. Glinton v. Denno, D.C.S.D.N.Y., 200 F.Supp. 643, after a hearing which we had ordered on a previous appeal, United States ex rel. Glinton v. Denno, 2 Cir., 291 F.2d 541.
In November 1957, the police obtained certain information causing them to suspect the relator, Charles Glinton, of murdering one Jose Rivera, who had died in a fall from the window of Glinton’s hotel apartment the previous September. Glinton was arraigned as a material witness in a “John Doe” grand jury proceeding investigating Rivera’s death. Section 618-b of the N. Y. Code of Crim. Proc. authorizes the district attorney to request that a judge require bail of any person deemed a material witness in a [544] pending criminal proceeding and to direct commitment if the prospective witness fails to give bail. Acting on such a request, a state judge set Glinton’s bail at $10,000. Upon his failure to furnish the bail, Glinton was jailed in the City Prison. The statute requires a ■criminal action or proceeding to be pending in some New York court. Otherwise the fixing of bail and alternative imprisonment is unauthorized and void. People v. Doe, 261 App.Div. 504, 26 N.Y.S.2d 458, 461-462; In re Prestigiacomo, 234 App.Div. 300, 255 N.Y.S. 289, 290. Mere pendency of an investigation being conducted in the district attorney’s office is insufficient. People ex rel. Fusco (Galgano) v. Ryan, 204 Misc. 861, 124 N.Y.S.2d 690, 697; People ex rel. La Tempa v. Hughes, 182 Misc. 1078, 50 N.Y.S.2d 433. This requirement was thus initially fulfilled.
Sixteen days after Glinton had been arraigned in open court, at which time his attorney had been present, the proceeding for which relator was committed as a material witness was discontinued by the withdrawal from the grand jury •of the matter of Rivera’s death. Despite the fact that from then, November 30, 1957, until January 14, 1958, when Glin-ton was arraigned as the suspected murderer, no criminal proceeding was pending in any New York court, Glinton continued to be incarcerated as a material witness. During this period of illegal •detention, see People v. Doe, supra, 261 App.Div. 504, 26 N.Y.S.2d 458; In re Prestigiacomo, supra, 234 App.Div. 300, 255 N.Y.S. 289, Glinton made several ■statements attempting to exculpate himself, but which connected him' with the time and place of the murder and which were used against him at trial. Relator contends that the use of statements obtained during an illegal detention constituted a denial of due process.
Statutes such as § 618-b, N.Y.Code of Crim.Proc., providing for the incarceration of a material witness in a criminal proceeding who fails to give bond as ordered by the court, appear to be fairly common and to have been enforced without question. Barry v. United States ex rel. Cunningham, 279 U.S. 597, 617, 49 S.Ct. 452, 73 L.Ed. 867. See F.R.Crim.P. 46(b). But the extensive possibilities for abuse of personal liberty make necessary the requirement forcibly stated by the New York cases cited above of strict compliance with the statutory provision. The problem for us is raised because of the fact, found by the court below and now not contested, that there was no criminal proceeding pending after November 30, 1957, and hence that the confinement, though initially legal, was illegal for the greater part of its term and particularly during the time when the most damaging statements were obtained. It is implied that an order for submission of the matter to another grand jury was easily obtainable and that failure to secure it was a mere oversight; but this hardly changes the fact of illegality. Oddly, however, this seems to have been overlooked by the distinguished New York Court of Appeals; for in its order extending its remittitur to show the raising of a federal constitutional issue, 8 N.Y.2d 849, 203 N.Y.S.2d 898, 899, 168 N.E.2d 704, it states this as involving the admission in evidence “of statements made by defendant while he was being lawfully detained as a material witness.” We do not know what action that great court might have taken had it then appeared that actually the defendant was being unlawfully detained.
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CLARK, Circuit Judge.
Relator was convicted of premeditated murder in the Court of General Sessions, New York, on April 16,1959. The highest court of that state denied his appeal without opinion, People v. Glinton, 8 N.Y.2d 742, 201 N.Y.S.2d 336, 167 N.E.2d 741, remittitur amended, 8 N.Y.2d 849, 203 N.Y.S.2d 898, 168 N.E.2d 704, and the United States Supreme Court denied certiorari, Mr. Justice Douglas dissenting, Glinton v. New York, 364 U.S. 853, 81 S.Ct. 96, 5 L.Ed.2d 77. The case is here on appeal from the dismissal of the writ of habeas corpus attacking that conviction, United States ex rel. Glinton v. Denno, D.C.S.D.N.Y., 200 F.Supp. 643, after a hearing which we had ordered on a previous appeal, United States ex rel. Glinton v. Denno, 2 Cir., 291 F.2d 541.
In November 1957, the police obtained certain information causing them to suspect the relator, Charles Glinton, of murdering one Jose Rivera, who had died in a fall from the window of Glinton’s hotel apartment the previous September. Glinton was arraigned as a material witness in a “John Doe” grand jury proceeding investigating Rivera’s death. Section 618-b of the N. Y. Code of Crim. Proc. authorizes the district attorney to request that a judge require bail of any person deemed a material witness in a [544] pending criminal proceeding and to direct commitment if the prospective witness fails to give bail. Acting on such a request, a state judge set Glinton’s bail at $10,000. Upon his failure to furnish the bail, Glinton was jailed in the City Prison. The statute requires a ■criminal action or proceeding to be pending in some New York court. Otherwise the fixing of bail and alternative imprisonment is unauthorized and void. People v. Doe, 261 App.Div. 504, 26 N.Y.S.2d 458, 461-462; In re Prestigiacomo, 234 App.Div. 300, 255 N.Y.S. 289, 290. Mere pendency of an investigation being conducted in the district attorney’s office is insufficient. People ex rel. Fusco (Galgano) v. Ryan, 204 Misc. 861, 124 N.Y.S.2d 690, 697; People ex rel. La Tempa v. Hughes, 182 Misc. 1078, 50 N.Y.S.2d 433. This requirement was thus initially fulfilled.
Sixteen days after Glinton had been arraigned in open court, at which time his attorney had been present, the proceeding for which relator was committed as a material witness was discontinued by the withdrawal from the grand jury •of the matter of Rivera’s death. Despite the fact that from then, November 30, 1957, until January 14, 1958, when Glin-ton was arraigned as the suspected murderer, no criminal proceeding was pending in any New York court, Glinton continued to be incarcerated as a material witness. During this period of illegal •detention, see People v. Doe, supra, 261 App.Div. 504, 26 N.Y.S.2d 458; In re Prestigiacomo, supra, 234 App.Div. 300, 255 N.Y.S. 289, Glinton made several ■statements attempting to exculpate himself, but which connected him' with the time and place of the murder and which were used against him at trial. Relator contends that the use of statements obtained during an illegal detention constituted a denial of due process.
Statutes such as § 618-b, N.Y.Code of Crim.Proc., providing for the incarceration of a material witness in a criminal proceeding who fails to give bond as ordered by the court, appear to be fairly common and to have been enforced without question. Barry v. United States ex rel. Cunningham, 279 U.S. 597, 617, 49 S.Ct. 452, 73 L.Ed. 867. See F.R.Crim.P. 46(b). But the extensive possibilities for abuse of personal liberty make necessary the requirement forcibly stated by the New York cases cited above of strict compliance with the statutory provision. The problem for us is raised because of the fact, found by the court below and now not contested, that there was no criminal proceeding pending after November 30, 1957, and hence that the confinement, though initially legal, was illegal for the greater part of its term and particularly during the time when the most damaging statements were obtained. It is implied that an order for submission of the matter to another grand jury was easily obtainable and that failure to secure it was a mere oversight; but this hardly changes the fact of illegality. Oddly, however, this seems to have been overlooked by the distinguished New York Court of Appeals; for in its order extending its remittitur to show the raising of a federal constitutional issue, 8 N.Y.2d 849, 203 N.Y.S.2d 898, 899, 168 N.E.2d 704, it states this as involving the admission in evidence “of statements made by defendant while he was being lawfully detained as a material witness.” We do not know what action that great court might have taken had it then appeared that actually the defendant was being unlawfully detained.
It seems reasonably clear that such statements could not be properly introduced in evidence in a federal trial had they been obtained from a person illegally detained under color of the similar federal provision, F.R.Crim.P. 46(b). See Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479; McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. See also Judge Bazelon’s dissent in Starr v. United States, 105 U.S.App.D.C. 91, 264 F.2d 377, certiorari denied 359 U.S. 936, 79 S.Ct. 652, 3 L.Ed.2d 639, relying on Opper v. United States, 348 U.S. 84, 91-92, 75 S.Ct. 158, 99 L.Ed. 101, and arguing [545] that an exculpatory statement written by the defendant nine hours after arrest, but before arraignment, and introduced to counter an insanity defense should have been excluded under the MeNabb-Mallory rule. On numerous occasions, however, the Supreme Court has insisted that the McNabb-Mallory principle is a federal evidentiary rule, not binding on state courts through the Fourteenth Amendment. See, e. g., Brown v. Allen, 344 U.S. 443, 476, 73 S.Ct. 397, 97 L.Ed. 469; Stein v. New York, 346 U.S. 156, 187, 73 S.Ct. 1077, 97 L.Ed. 1522. Thus, absent a finding of involuntariness or coercion, Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037, federal courts may not upset state convictions where the only basis for alleging that due process has been violated is the use of statements obtained during an illegal detention. Perhaps Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, upon which the relator heavily relies, may suggest a trend in the Court toward an extension of the federal rule to state proceedings. But there involved were violations of constitutional rights, and hence the decision itself does not reach this case. If the principle is thus to be extended it is more seemly that it be done by the Supreme Court than attempted by us.1
In the present case after a full hearing and a careful review of the evidence set forth at length in his detailed opinion, Judge Murphy found that Glinton’s statements were not coerced. D.C.S.D.N.Y., 200 F.Supp. 643, 645. Unless the element of illegality we have noted makes the statements coerced as a matter of law, the judge’s findings are amply supported in the evidence and we have no basis for holding them clearly erroneous. And since under the present standards of the law the detention and resulting statements cannot be held violative of federal due process, the conviction is beyond federal reach.
Affirmed.