                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT

              _________________________________________

                             No. 91-2599
              _________________________________________



                         UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                   VERSUS


                          RAFAEL PEREZ-BUSTAMANTE,

                                                      Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________
                          (May 29, 1992)

Before SNEED,1 REAVLEY, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

     The     single    issue   before   us    is   whether   Rafael   Perez-

Bustamante's confession, given on Monday morning, the day before

New Year's and approximately 60 hours after his Friday night

arrest, should have been suppressed as involuntary, solely because,

prior to his confession, he had not been taken before a magistrate.

We AFFIRM.




1
     Senior Circuit       Judge   of    the   Ninth   Circuit,   sitting   by
designation.
                                  I.

     At 9:00 p.m. on Friday, December 28, 1990, in response to a

sensor alert,2 Border Patrol Agents were dispatched to an area near

the Rio Grande River, sixteen miles east of the International

Bridge at Brownsville, Texas.      On arriving, they observed Perez

looking toward a trail that led to the river.        Ordered to come

forward, Perez drew a pistol.3

     Perez was arrested; and when two more agents arrived, they

pursued two other individuals.         From the trail leading to the

river, they observed four or five persons swimming back across the

river.   The agents found two wet inner tubes along the river bank;

two pistols; and two large bags containing 167 pounds of marijuana

in the field next to the river (approximately 100 to 150 yards from

the arrest site).

     At the arrest site, an agent read Perez his Miranda rights (in

Spanish).   After Perez was taken to the Brownsville Border Patrol

Station, he was again read those rights (in Spanish).   Perez waived

them (written) and was interviewed and processed for Immigration

purposes.   He stated that he was a Mexican citizen and had entered

the United States illegally.4      As part of his processing as an

illegal alien, Perez executed several forms which explained the


2
     A sensor is a device planted in the ground that alerts to
pressure vibrations in the area around it.
3
     An agent drew his pistol and shouted (in Spanish)
"Immigration. Drop the pistol." After this command was repeated
several times, Perez obeyed.
4
     Perez does not challenge this confession.

                                 - 2 -
reason for his arrest and his rights in deportation proceedings.5

     Because the Border Patrol was not authorized to process Perez

on drug charges, it notified DEA Agent Tamayo of the seizure and

that Perez was in custody.     After midnight, Perez was taken by

Border Patrol Agents to the Port Isabel Service Processing Center

(a Border Patrol detention camp) in Bayview, Texas.

     Magistrates were not available for initial appearances during

the weekend, but Tamayo expected that Perez would see one on

Monday.    On Monday, December 31, 1990, the marijuana and pistol

were released to Tamayo; and between 10:00 and 11:00 a.m., Perez

was taken to the Brownsville DEA office for processing on drug

charges.   Tamayo told Perez that morning that he (Perez) would see

a magistrate that day; normally, defendants are arraigned between

1:30 and 3:00 p.m.6

5
     Those forms were: I-213 (Record of Deportable Alien); I-214
(Rights Form); I-221 (Form of Arrest for Illegal Entry Form) and I-
274 (Voluntary Departure or Hearing Form).
6
     As discussed infra, it was not until after his interview with
Perez that Tamayo learned that a magistrate was not available on
December 31. The following colloquy occurred at the suppression
hearing:

           THE COURT:     At   what   time   was   this [Perez's]
           statement taken?

           [TAMAYO]:      It was approximately 10:00 to 11:00
           [a.m.] ... on Monday, December 31st.

                                * * *

           THE COURT:     In ordinary course, ... when do you
           take persons before the Magistrate? At what hour?

           [TAMAYO]:      Normally between 1:30 and 3:00 is
           when they are arraigned....


                                - 3 -
     Tamayo advised Perez of his Miranda rights (in Spanish) and

informed him that he was being charged with possession of marijuana

and carrying a weapon during a narcotics transaction.   Perez then

informed Tamayo that he was carrying a gun to protect the load of

marijuana, not to engage law enforcement; that he was hired by an

individual named Juan from Matamoros; and that he was going to be

paid $100 to assist and protect the marijuana.   Perez's statement

was not in response to a question; as indicated, it was offered


          THE COURT:     So if the Magistrate had been
          available [on Monday], the arraignment would, in
          ordinary course, have taken place that afternoon?

          [TAMAYO]:      Yes, sir ....

                              * * *

          [GOVERNMENT:] Did you take the defendant in front
          of a Magistrate?

          [TAMAYO:]      Well, I had told the defendant that
          he would appear before the Magistrate that day.
          Since one was not available, he would have to wait
          two days, which would have been the Wednesday
          appearance.

          [GOVERNMENT:] Did you tell him before or after he
          made the statement?

          [TAMAYO:]      ... [I]t was after the statements,
          because it was after then that I found out that no
          Magistrate was available.

          [GOVERNMENT:] Okay.      Now, did you make any
          promises or threats to the defendant in order to
          obtain these statements?

          [TAMAYO:]      None at all.

          [GOVERNMENT:] Did you take the defendant in front
          of the Magistrate at the earliest possible time?

          [TAMAYO:]      Yes, it was, which was Wednesday on
          January 2nd, 1991.

                              - 4 -
after Tamayo informed him of the charges.7        The interview, which

included fifteen minutes of taking photographs and fingerprints,

lasted approximately thirty minutes.        After the interview, Tamayo

learned that, because of the New Year's holiday, a magistrate would

not be available until Wednesday, January 2.           He informed Perez,

who remained in custody and did not appear before a magistrate

until two days later.

     Perez was indicted on six drug and weapons counts.8             Relying

in   part   on   18   U.S.C.   §   3501,   discussed   infra,   he    moved

unsuccessfully to suppress his December 31 confession, contending

that it was involuntary, solely because of the delay in his


7
     Tamayo testified at the suppression hearing as follows:

            [TAMAYO:]    I don't recall that I asked him a
            question.   It was after I told him what he was
            being charged with that he explained to me about
            what the purpose of the firearm was. He was very
            concerned about that.

            [DEFENSE COUNSEL:]     You asked him no questions?

            [TAMAYO:]   When I told him what he was charged
            with, that's when he just started -- we carried on
            a   conversation.     There  [were]   no  specific
            questions. And he was concerned about the firearm.
8
     He was indicted for (1) conspiracy to import more than 50
kilograms of marijuana, in violation of 21 U.S.C. §§ 963, 952(a),
and 960(b)(3); (2) importing approximately 167 pounds of marijuana,
in violation of 21 U.S.C. §§ 952(a), 960(b)(3), and 18 U.S.C. § 2;
(3) conspiracy to possess with intent to distribute more than 50
kilograms of marijuana, in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(C); (4) possessing with intent to
distribute approximately 167 pounds of marijuana, in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2; (5)
possession of a firearm during and in relation to a drug
trafficking offense, in violation of 18 U.S.C. § 924(c); and (6)
possessing a firearm as an illegal alien, in violation of 18 U.S.C.
922(g)(5).

                                   - 5 -
appearing before a magistrate.                 In March 1991, Perez was tried

before a jury and convicted on all counts.                     He was sentenced, inter

alia, to 101 months' imprisonment.

                                             II.

     Perez confessed approximately 60 hours after he was arrested

and two days prior to appearing before a magistrate.                            Arrested

without a warrant on Friday night, Perez contends that, under the

Fourth Amendment, he was required to be taken before a magistrate

prior   to     the     time    on    Monday        that   he    confessed;    and   that

accordingly,         his    confession       was     involuntary     and,     therefore,

inadmissible.9

     Federal Rule of Criminal Procedure 5(a) bears on this issue.

It provides in pertinent part:                "An officer making an arrest ...

shall take the arrested person without unnecessary delay before the

nearest available federal magistrate or, in the event that a

federal magistrate is not reasonably available, before a state or

local judicial officer authorized by 18 U.S.C. § 3041."                        For Rule

5(a) purposes here, in determining whether the delay rendered the

pre-presentation confession inadmissible, our focus is on 18 U.S.C.

§ 3501, which provides in part:                     "In any criminal prosecution

brought   by    the        United   States    ...     a   confession    ...    shall   be

admissible in evidence if it is voluntarily given."                         18 U.S.C. §




9
     Perez concedes that the subsequent period between the Monday
confession and Wednesday appearance is not relevant. And, because
we hold that the confession was admissible, we need not reach the
issue of harmless error.

                                         - 6 -
3501(a).10     Section 3501 requires the trial judge to determine

voluntariness in light of

             all the circumstances surrounding the giving of the
             confession, including (1) the time elapsing between
             arrest and arraignment of the defendant making the
             confession, if it was made after arrest and before
             arraignment, (2) whether such defendant knew the
             nature of the offense with which he was charged or
             of which he was suspected at the time of making the
             confession, (3) whether or not such defendant was
             advised or knew that he was not required to make
             any statement and that any such statement could be
             used against him, (4) whether or not such defendant
             had been advised prior to questioning of his right
             to the assistance of counsel; and (5) whether or
             not such defendant was without the assistance of
             counsel when questioned and when giving such
             confession.

                  The presence or absence of any of the above-
             mentioned factors to be taken into consideration by
             the judge need not be conclusive on the issue of
             voluntariness.

18 U.S.C. § 3501(b) (emphasis added).

     After the testimony at the suppression hearing, the following

exchange occurred:

             THE COURT:       ....    Now, are you attacking
             voluntariness?    I don't have any evidence to the
             contrary.

                                  * * *

             [DEFENSE COUNSEL]:   Your Honor, it is not my
             obligation to attack anything ....   What I am
             saying is that the Government has not fulfilled
             [its] burden in proving that Rafael Perez-
             Bustamante gave his confession knowingly and
             voluntarily....

             THE COURT:   ... I don't have any evidence other
             than it was voluntary and I so find. Aren't you
             also addressing the fact that there was a delay?

10
     Although Perez did not rely on Rule 5(a) in district court, he
did rely, as noted, upon § 3501.

                                  - 7 -
     [DEFENSE COUNSEL]: [T]he delay under [§] 3501(b)
     is one of the considerations that the trial judge
     in determining the issue of voluntariness shall
     take   into   consideration....      [T]he    delay
     contributed   to   the  involuntariness    of   the
     confession ....

     [THE COURT]: I don't agree.... I will tell you
     where I might have to agree. Had there been some
     statements made after Monday morning [December 31],
     I think that would have been an undue delay. But
     up till Monday morning, there was nothing that
     doesn't happen in ordinary course. In other words,
     when people are arrested Friday late, that they are
     simply taken before a Magistrate Monday during the
     course of the day.

          And what statements he made to Mr. Tamayo were
     made prior to the time that he ordinarily would
     have been taken to the Magistrate anyway. I don't
     think that departure is sufficient to where it
     would totally affect the voluntariness of the
     making of the statement.

          I would call to your attention that the
     evidence before me ... indicates, and there is
     nothing to the contrary, that the warning was not
     given once, but it was given three times before he
     made a statement to Mr. Tamayo. I don't think that
     the delay is such that it caused or created in the
     defendant a setting by which he did not knowingly
     and willfully make a statement.

Section 3501 further provides:

          [A] confession ... shall not be inadmissible
     solely because of delay in bringing a person before
     a magistrate ... if such confession is found by the
     trial judge to have been made voluntarily and if
     the weight to be given the confession is left to
     the jury and if such confession was made or given
     by such person within six hours immediately
     following his arrest ... Provided, That the time
     limitation ... shall not apply in any case in which
     the delay in bringing such person before such
     magistrate ... beyond such six-hour period is found
     by the trial judge to be reasonable considering the
     means of transportation and the distance to be
     traveled to the nearest available such magistrate
     or other officer.



                         - 8 -
18   U.S.C.    §    3501(c).      Perez     asserts   that   §    3501(c)   renders

inadmissible all confessions obtained more than six hours after

arrest,   unless       the     delay   is    occasioned      by   "the   means   of

transportation and the distance to be traveled to the nearest

available ... magistrate".             However, this court rejected that

construction in United States v. Hathorn, 451 F.2d 1337, 1341 (5th

Cir. 1971):

              While Section 3501(c) can be construed to mean that
              the only confessions obtained more than six hours
              after arrest that can be admitted are those that
              were elicited during the time necessary for travel
              to the magistrate, we agree with the 9th Circuit
              [United States v. Halbert, 436 F.2d 1226 (9th Cir.
              1970)] that Congress did not intend to legislate
              any such arbitrary edict. We believe the correct
              interpretation to be that Congress established six
              hours as a minimum period which would pass muster.
              If, therefore, a longer delay occurs, it merely
              constitutes another factor to be considered by the
              trial judge in determining voluntariness.

Furthermore, in United States v. Bustamante-Saenz, 894 F.2d 114,

119-20 (5th Cir. 1990), we upheld the admission of a confession

given nine and one-half hours after arrest.               Similar to this case,

there was no evidence that the delay was for the purpose of

extracting a confession or that the interrogation was lengthy,

hostile, or coercive, even though the defendant was detained more

than thirty hours before he was presented to a magistrate.                    Id.

      "Once a defendant has been tried and convicted, delay in

bringing him before a magistrate is not reason to set aside the

conviction unless the defendant can show that he was prejudiced by

the delay."        Id. at 120 (quoting United States v. Causey, 835 F.2d

1527, 1529 (5th Cir. 1988)).           "[D]elay is `simply one factor which


                                       - 9 -
must   be   considered   along    with   other   factors   in    determining

voluntariness.'"     Id. (quoting United States v. Gorel, 622 F.2d

100, 104 (5th Cir. 1979), cert. denied, 445 U.S. 943 (1980)).

"[W]here there is no evidence to support a finding that the delay

was for the purpose of obtaining a confession, there is no evidence

that the delay had a coercive effect on the confession, there is no

causal connection between the delay and the confession, and the

confession was otherwise voluntarily given, we hold that the

defendant has not shown prejudice by the delay."           Id.

       Perez, however, seeks to impose a new standard, based on

County of Riverside v. McLaughlin, ___ U.S. ___, 111 S. Ct. 1661

(1991).     He maintains that, under McLaughlin, the 60 hours between

his arrest and confession is "not tolerable".11            "In Gerstein v.

Pugh, 420 U.S. 103 (1975), [the] Court held that the Fourth

Amendment requires a prompt judicial determination of probable

cause as a prerequisite to an extended pretrial detention following

a warrantless arrest."       McLaughlin, 111 S. Ct. at 1665.             In

McLaughlin, a § 1983 case, the Supreme Court addressed "what is

prompt under Gerstein."     Id.

                  Where an arrested individual does not receive
             a probable cause determination within 48 hours ....
             the arrested individual does not bear the burden of
             proving an unreasonable delay. Rather, the burden
             shifts to the government to demonstrate the
             existence of a bona fide emergency or other
             extraordinary circumstance.    The fact that in a
             particular case it may take longer than 48 hours to
             consolidate    pretrial   [probable    cause    and
             arraignment] proceedings does not qualify as an

11
     McLaughlin was decided approximately two and one-half months
after the suppression hearing in this case.

                                   - 10 -
            extraordinary circumstance.             Nor for that matter,
            do intervening weekends.

Id. at 1670.

     Perez asserts that the 48-hour requirement applies here.

McLaughlin's requirement arose out of concern that, following a

warrantless arrest, "prolonged detention [by a State] based on

incorrect    or    unfounded      suspicion     may     unjustly   `imperil     [a]

suspect's job, interrupt his source of income, and impair his

family relationships.'" Id. at 1668 (quoting Gerstein, 420 U.S. at

114) (brackets by Supreme Court).            The Court stated in McLaughlin

that its "purpose in Gerstein was to make clear that the Fourth

Amendment requires every State to provide prompt determinations of

probable cause...." Id. On the federal stage, Rule 5(a) addresses

this concern.

     On   the     other   hand,   §   3501    focuses    on   voluntariness     and

addresses    the    concern    that   a   federal     conviction   be   based    on

reliable evidence.        See Crane v. Kentucky, 476 U.S. 683, 687-92

(1986).     This concern is adequately protected, under § 3501, by

requiring the district court to consider carefully the issue of

unreasonable delay and by placing voluntariness before the trier of

fact.12

     The delay reflected in this case is cause for considerable

concern, as discussed below.              Under the § 3501 totality of the

circumstances test, however, we cannot say that the delay prior to

the confession rendered it inadmissible.              Perez was arrested late

12
     Perez requested, and received, an instruction pertaining to
the statement's voluntariness.

                                      - 11 -
Friday night; he was being held as an illegal alien (in part as the

result of a confession not challenged here); and he had executed

forms which explained the reason for his detention on immigration

charges.   There is no evidence that the delay in presenting Perez

to a magistrate was for the purpose of interrogation.              Perez never

claimed this; instead, he conceded for purposes of his suppression

motion that "the delay was not designed by the Government, (no

Magistrate was available until Wednesday morning)."             Furthermore,

there is no evidence that the interrogation was lengthy, hostile,

or coercive.     To the contrary, the interview with Tamayo lasted

about   thirty     minutes,     fifteen   of     which   were      devoted    to

fingerprinting and photographing.             Perez had been read Miranda

warnings   three   times,     once   immediately    before   the    interview.

Tamayo testified that, during the interview, he and Perez "carried

on a conversation" and that "[t]here were no specific questions."

In fact, as discussed, Perez volunteered the information after

being advised of the charges against him.          Finally, the record does

not suggest that the delay in any way caused Perez to confess.                 As

noted, Perez confessed on Monday morning, after he was told,

mistakenly, that he would see a magistrate in a few hours.

     Our holding should not be understood to condone the almost

five-day delay in taking a defendant before a magistrate.                    Such

delay, even for a holiday period, is not acceptable as standard

operating procedure; far from it.




                                     - 12 -
                         III.

Accordingly, the judgment is

     AFFIRMED.




                        - 13 -
