     Case: 12-40141   Document: 00512670798        Page: 1    Date Filed: 06/19/2014




                        REVISED June 19, 2014

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                                             United States Court of Appeals
                                    No. 12-40141                      Fifth Circuit

                                                                  FILED
                                                                 June 17, 2014

UNITED STATES OF AMERICA,                                       Lyle W. Cayce
                                                                     Clerk
             Plaintiff - Appellee

v.

CARMEN DE JESUS BOCHE-PEREZ,

             Defendant - Appellant



                 Appeal from the United States District Court
                      for the Southern District of Texas


Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Carmen De Jesus Boche-Perez (“Boche-Perez”) appeals from a criminal
conviction pursuant to a conditional plea agreement in which he pleaded guilty
to knowing possession of child pornography, but reserved the right to appeal the
denial of a motion to suppress a series of confessions given to border patrol
agents. For the following reasons, we AFFIRM the district court’s ruling on the
motion to suppress.
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                                 No. 12-40141

                       FACTS AND PROCEEDINGS
      Boche-Perez, a lawful permanent resident, was apprehended while
entering the United States at the Laredo, Texas, port of entry on Wednesday,
October 27, 2010. Customs and Border Patrol (“CBP”) agents initially detained
Boche-Perez for inspection at 9 a.m. after an ID check revealed that he was
flagged as a suspected narcotics smuggler. Because Boche-Perez had a criminal
history, border agents followed procedure and took Boche-Perez to the hard
secondary inspection room, where he sat handcuffed to a chair for officer safety.
After questioning and holding Boche-Perez in custody, CBP agents determined
that Boche-Perez was eligible to enter the country. A final search of Boche-
Perez’s luggage at approximately 12:40 p.m., though, turned up DVDs
containing child pornography.       Boche-Perez does not contend that his
detainment or the searches leading up to this point were unconstitutional.
      Once the CBP agents discovered the DVDs with child pornography, they
stopped questioning Boche-Perez and contacted Immigration and Customs
Enforcement (“ICE”). An ICE agent arrived at the port at about 1 p.m. At
approximately 1:50 p.m., the ICE agent read Boche-Perez his Miranda warnings
and began interviewing him regarding the DVDs. Boche-Perez waived his
Miranda rights and denied knowing that the DVDs contained child pornography.
The interview ended shortly before 3 p.m., at which point the ICE agent
contacted an Assistant United States Attorney, who agreed to prosecute Boche-
Perez at 3:22 p.m.
      The ICE agent then informed Boche-Perez that he was being arrested for
possession of child pornography and that he would be transported to the Webb
County jail. At that time, however, Boche-Perez still had to be processed for
admittance and paroled into the United States. Accordingly, at approximately
4 p.m., a CBP agent interviewed Boche-Perez to process him into the United
States.   The CBP agent gave Boche-Perez his Miranda warnings again, and

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                                 No. 12-40141

after he waived his rights, he confessed at approximately 4:15 p.m. In his
confession, Boche-Perez specifically admitted that he knew the DVDs contained
child pornography even before they were discovered in his luggage at the border.
After the 4:15 p.m. oral confession, the CBP officer began the preparation of a
written confession. The CBP officer took from approximately 4:20 p.m. to 5:10
p.m. to prepare the statement. Boche-Perez then reviewed the statement, and
signed the written confession at 6 p.m.
      At 9 p.m. CBP informed ICE that Boche-Perez had confessed and was
ready to be transported to the Webb County Sheriff’s office. Before transporting
Boche-Perez to jail, however, the ICE agent who had arrested Boche-Perez
questioned him again. ICE’s second round of questioning elicited statements
from Boche-Perez regarding his possession of additional child pornography at his
home in Arkansas. The ICE agent gave this information to law enforcement
officers in Arkansas and asked them to obtain a search warrant for Boche-
Perez’s residence. That search subsequently yielded evidence of further child
pornography offenses.
      Boche-Perez was booked into the Webb County jail at 11:40 p.m. The ICE
agent admitted at the suppression hearing that the federal building was less
than 15 minutes from the bridge where Boche-Perez was arrested, and that the
Government had agreed to prosecute Boche-Perez by 3:22 p.m. on October 27th.
The ICE agent further admitted that at 3:22 p.m. he had the information needed
to prosecute, and that the criminal complaint would be only two-to-three pages.
Nonetheless, Boche-Perez spent two nights in jail, and was presented to the
magistrate judge on the morning of Friday, October 29, 2010. According to the
ICE agent, the delay occurred because the United States Attorney’s office
requires the paperwork for an initial appearance to be submitted for approval
by 4 p.m. on the day before presentment to the magistrate, and the ICE Agent



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                                 No. 12-40141

did not believe he had time to meet the 4 p.m. deadline after only getting the
agreement to prosecute at 3:22 p.m.
      In ruling on Boche-Perez’s motion to suppress, the district court found that
he was not presented to the magistrate judge within six hours, but that his
statements were voluntary and not a consequence of the delay. Finding that the
delay was not created for the purpose of extracting a confession, but rather
resulted from delays arising out of administrative processing and the need for
coordination across multiple law enforcement agencies, the district court denied
Boche-Perez’s motion to suppress his statements on the basis of a delay in
presentment. The district court also determined that his confessions were
voluntary, and that no Miranda violation had occurred.
      After the motion to suppress was denied, Boche-Perez entered a
conditional guilty plea to knowingly possessing child pornography. Boche-Perez
reserved the right to appeal the denial of the motion to suppress. The district
court sentenced him to 63 months in prison and to 5 years of supervised release.
Boche-Perez timely appealed.


                          STANDARD OF REVIEW
      In reviewing a motion to suppress, this court reviews the district court’s
legal determinations de novo and its factual findings for clear error. United
States v. Gonzalez, 121 F.3d 928, 938 (5th Cir. 1997). We look at the evidence
in the light most favorable to the prevailing party, United States v.
Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005), which here is the Government.
A district court’s ruling on a motion to suppress may be affirmed on any basis
supported by the record. United States v. Ibarra-Sanchez, 199 F.3d 753, 758 (5th
Cir. 1999).




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                                         No. 12-40141

                                       DISCUSSION
       Boche-Perez challenges (1) the district court’s denial of his motion to
suppress his three confessions on the basis of an unreasonable delay in
presentment, (2) the district court’s denial of his motion to suppress his three
confessions on the grounds that they were involuntary, and (3) the district
court’s denial of his motion to suppress his final confession on the basis of a
claimed Miranda violation. Boche-Perez’s arguments do not succeed.


1) Delay in Presentment
       Rule 5 of the Federal Rules of Criminal Procedure requires that “[a] person
making an arrest within the United States must take the defendant without
unnecessary delay before a magistrate judge.” Fed. R. Crim. P. 5(a)(l)(A). Rule
5 codifies the common-law rule of “prompt presentment,” which required that an
officer take an arrested person before a magistrate “as soon as he reasonably
could.” Corley v. United States, 556 U.S. 303, 306 (2009). In McNabb v. United
States, 318 U.S. 322 (1943) and Mallory v. United States, 354 U.S. 449 (1957),
the    Supreme         Court    established     a   remedy    for    violations    of   the
prompt-presentment requirement: suppression of any confession obtained during
a period of unreasonable delay. Corley, 556 U.S. at 309.
       In 1968, Congress modified the McNabb–Mallory framework by enacting
18 U.S.C. § 3501. Section 3501(c) provides that a court may not suppress a
confession made during a six-hour safe-harbor period solely due to a delay in
presentment if the confession was made voluntarily.1 See Corley, 556 U.S. at

       1
           18 U.S.C. § 3501(c) provides that:

       In any criminal prosecution by the United States or by the District of Columbia, a
       confession made or given by a person who is a defendant therein, while such person
       was under arrest or other detention in the custody of any law-enforcement officer or
       law-enforcement agency, shall not be inadmissible solely because of delay in bringing
       such person before a magistrate judge or other officer empowered to commit persons

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                                       No. 12-40141

322. Section 3501(c) also permits for an extension of the six-hour safe harbor in
any case in which the delay in bringing such a person before a magistrate is
found by the trial judge to be reasonable considering the means of transportation
and the distance to be traveled to the nearest magistrate. Confessions provided
outside § 3501(c)’s safe-harbor, however, remain subject to the McNabb-Mallory
exclusionary rule. Id.; see also United States v. Cantu-Ramirez, 669 F.3d 619,
625 (5th Cir. 2012).
      Because this circuit has yet to address the viability of its pre-Corley case
law in cases involving presentment delays that fall outside of the safe harbor, we
must first address the implications of Corley.
      (A) Effect of Corley on Existing Case Law
      This circuit abides by the rule of orderliness, under which a panel of the
court cannot overturn a prior panel decision “absent an intervening change in
the law, such as by a statutory amendment, or the Supreme Court or by our en
banc court.” Technical Automation Servs. Corp v. Liberty Surplus Ins. Corp., 673
F.3d 399, 405 (5th Cir. 2012) (internal quotation marks omitted). “[F]or a
Supreme Court decision to change our [c]ircuit’s law, it must be more than
merely illuminating with respect to the case before the court and must
unequivocally overrule prior precedent.” Id. at 405 (internal quotation marks
and alterations omitted). Our inquiry is whether Corley unequivocally overruled
our existing precedent concerning McNabb-Mallory. We hold that it did.



      charged with offenses against the laws of the United States or of the District of
      Columbia 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 or
      other detention: Provided, [t]hat the time limitation contained in this subsection shall
      not apply in any case in which the delay in bringing such person before such magistrate
      judge or other officer 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 judge or other officer.

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                                  No. 12-40141

      Before Corley we treated a delayed presentment as just one factor to be
considered as part of a totality-of-the-circumstances evaluation into whether a
confession was given voluntarily. See, e.g., United States v. Perez-Bustamante,
963 F.2d 48, 52-53 (5th Cir. 1992); United States v. Bustamante-Saenz, 894 F.2d
114, 120 (5th Cir. 1990). Delays longer than six hours “merely constitute[d]
another factor to be considered by the trial judge in determining voluntariness.”
United States v. Hathorn, 451 F.2d 1337, 1341 (5th Cir. 1971).             Corley
unequivocally held that our prior approach was in error.
      Corley makes clear that even voluntary confessions should be suppressed
if they occurred during a period of unreasonable delay. “If the confession
occurred before presentment and beyond six hours,” the Supreme Court
instructed, “the court must decide whether delaying that long was unreasonable
or unnecessary under the McNabb-Mallory cases, and if it was, the confession
is to be suppressed.” 556 U.S. at 322. Accordingly, we take this opportunity to
confirm that, to the extent our previous cases have indicated that a greater-than-
six-hour delay is only a component of a broader voluntariness examination, those
cases were overruled by the Supreme Court in Corley. Instead, when presented
with a delay outside of the safe harbor, a district court must apply the McNabb-
Mallory doctrine to determine whether the delay in bringing a suspect before a
magistrate was reasonable.




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                                         No. 12-40141

       B) Standard for Determining Violations of McNabb-Mallory2
       Mallory provides the following guidance for determining whether a
confession happened after a period of unnecessary delay:
      The police may not arrest upon mere suspicion but only on ‘probable
   cause.’ The next step in the proceeding is to arraign the arrested person
   before a judicial officer as quickly as possible so that he may be advised of
   his rights and so that the issue of probable cause may be promptly
   determined. The arrested person may, of course, be ‘booked’ by the police.
   But he is not to be taken to police headquarters in order to carry out a
   process of inquiry that lends itself, even if not so designed, to eliciting
   damaging statements to support the arrest and ultimately his guilt.
      The duty enjoined upon arresting officers to arraign ‘without
   unnecessary delay’ indicates that the command does not call for
   mechanical or automatic obedience. Circumstances may justify a brief
   delay between arrest and arraignment, as for instance, where the story
   volunteered by the accused is susceptible of quick verification through
   third parties. But the delay must not be of a nature to give opportunity
   for the extraction of a confession.

354 U.S. at 454-55. As noted by the Supreme Court, the doctrine proscribes only
unnecessary delays, and not delay itself. Accordingly, when applying McNabb-
Mallory, a court cannot simply “watch[] the clock,” and treat the doctrine as “a
carpenter’s measuring stick to be used by merely laying it alongside the material
to be evaluated.” Muschette v. United States, 322 F.2d 989, 991 (D.C. Cir. 1963),
vacated on other grounds, 378 U.S. 569 (1964). A six-hour delay in presentment
should not be treated as a sort of talismanic formula that renders all confessions
made after the delay inadmissable: “[a] lapse of hours between arrest and


       2
        We highlight for the sake of clarity that the Government did not raise any argument
that Boche-Perez’s waiver of his Miranda rights also constituted a waiver of his McNabb-
Mallory rights. Because any delays that occurred were reasonable and/or harmless, we do not
reach the question of whether such a rule exists in this circuit, or the effect, if any, Corley had
on such a rule. We do note, however, that some courts have come to the conclusion that a
Miranda waiver also constitutes a waiver of rights under McNabb-Mallory. See, e.g., Corley,
556 U.S. at 328-29 (Alito, J., dissenting) (citing cases); United States v. Guthrie, 265 F. App’x
478, 480-81 (9th Cir. 2008); see also Brown v. United States, 979 A.2d 630, 636-37 (D.C. 2009)
(considering effect of Corley on McNabb-Mallory waivers).

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                                        No. 12-40141

arraignment, standing alone, does not require the exclusion of a statement made
during the period.” United States v. Jaswal, 47 F.3d 539, 542 (2d Cir. 1995); see
also Muschette, 322 F.2d at 241. “The mere fact that a confession is made while
[the accused] is in custody of the police does not render it inadmissable,”
McNabb, 318 U.S. at 346, because “it is the need for the delay rather than its
length that is controlling.” 1 Charles Alan Wright & Andrew D. Leipold, Federal
Practice and Procedure: Criminal § 73, at 179 (4th ed. 2008).
       Accordingly, a McNabb-Mallory challenge requires a district court to make
two determinations:
       Initially, the court must determine the length of the delay. The McNabb-
Mallory clock starts to run from when the obligation to take the defendant before
the federal magistrate arises, see United States v. Alvarez-Sanchez, 511 U.S. 350,
359 (1996), to the point at which the confession was rendered, see, e.g., United
States v. Mitchell, 322 U.S. 65, 70 (1944); United States v. Brown, 459 F.2d 319,
324 (5th Cir. 1971).3         McNabb-Mallory concerns itself with “the time of
confession, not the time of first appearance.” 1 Wright & Leipold § 73, at 177.
If that period is shorter than six-hours, or alternatively, any extension of the
safe harbor “considering the means of transportation and the distance to be
traveled to the nearest available such magistrate judge or other officer,” 18
U.S.C. § 3501(c), then the McNabb-Mallory inquiry is at an end.




       3
         See also United States v. Elkins, 774 F.2d 530, 534-35 (1st Cir. 1985); United States
v. Leviton, 193 F.2d 848, 853 (2d Cir. 1951); Gov’t of V.I. v. Gereau, 502 F.2d 914, 924 (3d Cir.
1974), rev’d on other grounds, Corley, 556 U.S. at 312-13; United States v. Seohnlein, 423 F.2d
1051, 1053 (4th Cir. 1970); United States v. Long, 323 F.2d 468, 471 (6th Cir. 1963); United
States v. Davis, 532 F.2d 22, 25 (7th Cir. 1976); Bright v. United States, 274 F.2d 696, 697 (8th
Cir. 1960); United States v. Halbert, 436 F.2d 1226, 1237 (9th Cir. 1970), overruling on other
grounds recognized by United States v. Mendoza, 16 F. App’x 770, 772 (9th Cir. 2001);
Chapman v. United States, 397 F.2d 24, 26 (10th Cir. 1968); Mathies v. United States, 374 F.2d
312, 315 (D.C. Cir. 1967); Wayne R. LeFave et al., Criminal Procedure § 6.3 (Westlaw 3d ed.
2012).

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                                       No. 12-40141

       But if the length of the delay is determined to fall outside of the § 3501(c)
safe harbor, then the court needs to move on to the second step of the analysis
and examine whether the causes of the delay were justifiable under the McNabb-
Mallory cases. The defendant has the burden of demonstrating a McNabb-
Mallory violation. See, e.g., Brown, 459 F.2d at 324; Joseph v. United States, 239
F.2d 524, 527 (5th Cir. 1957); White v. United States, 200 F.2d 509, 512 (5th Cir.
1952).4
       McNabb-Mallory case law rejects delays when those delays have either (1)
a non-existent or (2) an unacceptable justification. A non-existent explanation
(i.e., delay for delay’s sake) is unacceptable under McNabb-Mallory because a
delay for delay’s sake is, by definition, unnecessary to any legitimate law
enforcement purpose. See, e.g., United States v. Yong Bing-Gong, 594 F. Supp.
248, 254 (S.D.N.Y. 1984), aff’d sub nom., United States v. Bing-Nam, 788 F.2d
4 (2d Cir. 1986). Similarly, a delay for the purpose of interrogation “is the
epitome of [an] unnecessary delay.” Corley, 556 U.S. at 308; see also Rogers v.
United States, 330 F.2d 535, 538 (5th Cir. 1964). But beyond either unexplained
delays or purposeful delays for criminal interrogations, courts have been “careful
not to overextend McNabb-Mallory’s prophylactic rule in cases where there was
a reasonable delay unrelated to any prolonged interrogation of the arrestee.”
United States v. Garcia-Hernandez, 569 F.3d 1100, 1106 (9th Cir. 2009).
       As a result, the McNabb-Mallory doctrine tolerates delays related to
legitimate law enforcement procedures, such as the administrative booking of


       4
         See also see also United States v. Van Poyck, 77 F.3d 285, 288 (9th Cir. 1996); Miller
v. United States, 396 F.2d 492, 496 (8th Cir. 1968); Tillotson v. United States, 231 F.2d 736,
738 (D.C. Cir. 1956); United States v. Leviton, 193 F.2d 848, 854 (2d Cir. 1951). We do not
address whether there is a burden-shifting framework under McNabb-Mallory for delays in
presentment greater than a certain number of hours because Boche-Perez does not raise, and
therefore waived, any such argument. Cf. Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56-57
(1991) (articulating burden-shifting framework when the defendant is not given a probable
cause hearing within 48 hours).

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                                  No. 12-40141

the arrestee; coordinating with multiple law enforcement agencies or with the
U.S. attorney’s office; or verifying alibis. See, e.g., Mallory, 354 U.S. at 454;
Davis, 532 F.2d at 25-26; United States v. Collins, 462 F.2d 792, 795 (2d Cir.
1972);   Feguer v. United States, 302 F.2d 214, 251 (8th Cir. 1962); Haines v.
United States, 188 F.2d 546, 554-55 (9th Cir. 1951); cf. United States v. Corral-
Martinez, 592 F.2d 263, 268 (5th Cir. 1979). Delays so that the arrestee can
receive medical care and/or sober up have also long been sanctioned. See, e.g.,
United States v. Manuel, 706 F.2d 908, 914 (9th Cir. 1983); United States v.
Aman, 624 F.2d 911, 913 (9th Cir. 1980); United States v. Isom, 588 F.2d 858,
862 (2d Cir. 1978).
      Delays arising from a shortage of governmental personnel necessary for
the initial appearance and transportation thereto (such as attorneys, law
enforcement, and translators) also remain acceptable. See, e.g., Garcia-
Hernandez, 569 F.3d at 1106. For the purposes of determining whether there
is a shortage of governmental personnel, McNabb-Mallory does not require law
enforcement officers to drop everything and rush to the magistrate when doing
so would imperil public safety. See, e.g., Carter, 484 F. App’x at 457-58; United
States v. Hensley, 374 F.2d 341, 349 (6th Cir. 1967). Moreover, under Mallory-
McNabb, the police are not entirely “forbidden . . . to investigate crime.” United
States v. Vita, 294 F.2d 524, 530 (2d Cir. 1961) (internal quotation marks
omitted). As such, law enforcement personnel are permitted, within reasonable
limits, to investigate whether the crime occurred; search and secure a premises;
and secure, confiscate, or destroy contraband before taking an arrestee to a
magistrate. See, e.g., United States v. McDaniel, 441 F.2d 1160, 1161 (4th Cir.
1971); Williams v. United States, 419 F.2d 740, 743 n.6 (D.C. Cir. 1969); United
States v. Chadwick, 415 F.2d 167, 173 (10th Cir. 1969); O’Neal v. United States,
411 F.2d 131, 136 (5th Cir. 1969); United States v. Lovejoy, 364 F.2d 586, 589 (2d
Cir. 1966); United States v. Price, 345 F.2d 256, 261-62 (2d Cir. 1965); Rogers,

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                                       No. 12-40141

330 F.2d at 538-39; Williams, 273 F.2d at 798; Mallory v. United States, 259 F.2d
796, 798 (D.C. Cir. 1958). And provided that the defendant agrees to cooperate
before a period of unnecessary delay, McNabb-Mallory permits officers to
translate oral confessions into written confessions, and does not require officers
to prematurely terminate an interview. See, e.g., United States v. Redlightning,
624 F.3d 1090, 1107-08 (9th Cir. 2010); United States v. Candella, 469 F.2d 173,
175-76 (2d Cir. 1976); United States v. Johnson, 467 F.2d 630, 636-37 (2d Cir.
1972); Long v. United States, 360 F.2d 829, 833 (D.C. Cir. 1966); Vita, 294 F.2d
at 532; Metoyer v. United States, 250 F.2d 30, 33 (D.C. Cir. 1957); Leviton, 193
F.2d at 855.5
       Courts also accept delays when the delays arise out of the unavailability
of the magistrate. A magistrate can be considered unavailable due to a host of
reasons including: a busy docket; a closed court; or other factors, such as
distance and weather, that make transportation impractical, futile, and/or
dangerous. See, e.g., United States v. Carter, 484 F. App’x 449, 457-58 (11th Cir.
2012); United States v. Lasley, No. 8:11CR19, 2011 WL 1630936, at *4 (D. Ne.
2011). The prompt presentment requirement does not require a magistrate to
be available twenty-four hours a day, and the government is not required to take
the fastest possible route to the courthouse—just a reasonable one. See, e.g.,
Van Poyck, 77 F.3d at 289; United States v. Yunis, 859 F.2d 953, 969 (D.C. Cir.
1988); United States v. Mendoza, 473 F.2d 697, 702 (5th Cir. 1973); Williams v.
United States, 273 F.2d 781, 797 (9th Cir. 1959).



       5
          See also United States v. Michel, No. S4-11-CR.-755, 2013 WL 686690, at *3-4
(S.D.N.Y. Feb. 26, 2013); United States v. Annoreno, No. 06 CR 33-1, 2009 WL 3518155, at *4
(N.D. Ill. 2009); United States v. Pena Ontiveros, 547 F. Supp. 2d 323, 339 (S.D.N.Y. 2008);
United States v. Haouari, No. S1-00-CR.-15 (JFK), 2000 WL 1593345, at *7 (S.D.N.Y. Oct. 25,
2000); United States v. Berkovich, 932 F. Supp. 582, 588-89 (S.D.N.Y. 1996); Yong Bing-Gong,
594 F. Supp. at 257; United States v. Delamarra, 275 F. Supp. 1, 4-5 (D.D.C. 1967); cf. United
States v. McDowell, 687 F.3d 904, 910-11 (7th Cir. 2012).

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                                        No. 12-40141

      Finally, in applying McNabb-Mallory, a district court should not resort to
a “semanticism that obscures the facts” of a case. Leviton, 193 F.2d at 854. The
overall reasonableness of a delay will vary city-to-city, case-to-case, justification-
to-justification.6 With those basic principles in mind, we turn to Boche-Perez’s
confessions.
      C) Application of the McNabb-Mallory Rule
      Because the McNabb–Mallory exclusionary rule concerns itself with the
delay before the confession, we must examine each of the defendant’s confessions
to determine whether they occurred before an unnecessary delay in presentment.
The record reveals three confessions from Boche-Perez regarding the DVDs.
      Boche-Perez arrived at the border at approximately 9 a.m. CBP took him
to hard secondary around 9:10 a.m. CBP agents discovered the illegal DVDs in
Boche-Perez’s luggage at 12:40 p.m., at which point they contacted ICE. ICE
arrived at the port at 1:00 p.m., mirandized the defendant at approximately 1:50
p.m., and interviewed Boche-Perez from 1:50 p.m. to roughly 3 p.m. In that
interview, Boche-Perez denied knowing that the DVDs contained illegal
pornography. Nonetheless, at approximately 3 p.m., ICE contacted the U.S.
Attorney’s Office to see whether they would accept prosecution of the case. The
U.S. Attorney’s office accepted prosecution at 3:22 p.m. Boche-Perez’s first
confession soon followed.
               (i) The 4:15 p.m. Oral Confession
      The first confession occurred at approximately 4:15 p.m. After securing
prosecution with the U.S. Attorney’s office, ICE turned Boche-Perez over to a
CBP agent to process him for immigration purposes. The CBP officer began the
interview to process him for immigration purposes at 4:00 p.m., gave Miranda




      6
          See, e.g., Hensley, 374 F.2d at 349; Williams, 273 F.2d at 797-98.

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                                  No. 12-40141

warnings at 4:13 p.m., and Boche-Perez quickly confessed at approximately 4:15
p.m.
       Because the district court found that the six-hour safe harbor ran from
9:10 a.m., and the Government does not challenge that determination, we
assume that the six-hour harbor safe harbor expired at 3:10 p.m. Accordingly,
when applying the McNabb-Mallory doctine, we need to determine whether the
roughly seven hour delay before Boche-Perez’s first oral confession was
reasonable in light of the totality of the circumstances. We conclude that it was.
       First, we agree with the district court’s finding that there is “simply no”
evidence that “the delay was for the purpose of attempting to extract a
confession.” The delays that resulted before Boche-Perez’s confession occurred
not because of some effort to extend his detention for the purpose of
interrogating him, but rather because of the need for, and the difficulties
inherent in, coordination between “the remote law enforcement agencies and
agents” working at one of the busiest ports of entry on the Mexican border.
       The initial portion of the delay, from 9:10-12:40, and then from 12:40-3:00,
was attributable to (1) routine administrative processing and search procedures
at the border, (2) travel time for the officers responsible for investigating the
crime, and (3) to determine whether any crime had occurred. All three types of
delay have long been considered reasonable under McNabb-Mallory case law,
and they were especially so in this case given that the DVDs in question were
not even discovered until 12:40 p.m. See, e.g., Garcia-Hernandez, 569 F.3d at
1106; Corral-Martinez, 592 F.2d at 268; Collins, 462 F.2d at 795; McDaniel, 441
F.2d at 1160-61; Mallory, 259 F.2d at 798.
       The next portion of the delay, from 3:00-3:22 p.m., occurred because of
ICE’s need to consult with the AUSA as to whether criminal charges could be
filed. Again, such delays have long been sanctioned by courts applying McNabb-
Mallory. See, e.g., Davis, 532 F.2d at 25-26.

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                                 No. 12-40141

      The final portion of the delay, from 3:22-4:15 p.m., had two causes, both
of which were sufficient to justify delaying Boche-Perez’s presentment. First, at
the time he had confessed, ICE had not completed, and the AUSA had not
reviewed, a criminal complaint for Boche-Perez. The ICE agent justified the
delay during the suppression hearing by explaining that, after receiving the
AUSA’s agreement to prosecute the case at 3:22 p.m., he did not believe that he
could complete the complaint in time for the local U.S. Attorney’s 4:00 p.m.
deadline for criminal complaints. As such, the criminal complaint was not
submitted to the U.S. Attorney’s office until the next day, and Boche-Perez was
not presented to the magistrate until two full days had passed from when Boche-
Perez was first placed in hard secondary.
      Though ICE’s inability to submit a criminal complaint to the U.S. Attorney
by 4 p.m. had the unfortunate effect of delaying Boche-Perez’s presentment by
almost 24 hours from when it otherwise would have occured, the length of the
ultimate delay does not affect the McNabb-Mallory analysis of Boche-Perez’s
4:15 p.m. oral confession. McNabb-Mallory examines the reasonableness of the
delay at the time of confession, not the time of presentment. Accordingly, rather
than focusing on the effects that the failure to have completed a complaint by 4
p.m. had on Boche-Perez’s time of presentment, we consider whether it was
reasonable to have delayed his presentment past 4:15 p.m. because a complaint
had not been completed by that time.
      That delay was reasonable: a review of the complaint suggests that it was
fair for the ICE agent to spend at least thirty minutes preparing the
complaint—the McNabb-Mallory doctrine does not require government agents
and lawyers to act with such haste that they omit proofreading their court
filings—and also fair for the relevant U.S. attorney, even though not instantly
available, to insist on reviewing and approving the complaint before it was filed



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                                      No. 12-40141

in court.7 Cf. Davis, 532 F.2d at 25-26; Collins, 462 F.2d at 795; Haines, 188
F.2d at 554-55. It was reasonable for the entire process of preparing and
approving the complaint to take at least an hour. As such, Boche-Perez’s
presentment had not been unreasonably delayed by the time he confessed
because the relevant governmental personnel had not had sufficient time to
prepare the paperwork necessary for the initial appearance.
       Second, and in the alternative, even after the U.S. Attorney’s office had
approved prosecution at 3:22 p.m., Boche-Perez still had to be administratively
processed for immigration purposes and paroled into the United States. Boche-
Perez takes exception to the fact that some of the questions from the CBP agents
concerned the DVDs and not just his immigration status, but his arguments
ignore that his possession of the DVDs also had significant implications for his
immigration status.
       Under 8 U.S.C. § 1101(a)(13)(C), an “alien lawfully admitted for
permanent residence in the United States”— such as Boche-Perez—“shall not
be regarded as seeking an admission into the United States for purposes of the
immigration law unless the alien . . . has engaged in illegal activity after having
departed the United States.” Boche-Perez’s possession of the DVDs provided
clear and convincing evidence that he had engaged in an illegal activity after
having departed the United States. CBP officials were accordingly entitled to


       7
        Because we consider only the reasonableness of the delay until Boche-Perez confessed
based on the totality of circumstances presented here, we do not pass judgment on the overall
legitimacy under the Federal Rules of Criminal Procedure of the office policy that requires
criminal complaints to be submitted by 4:00 p.m. on the day before presentment for review and
transmittal to the court. We are mindful of the fact that generally standardized
administrative processes are in place to expedite, rather than delay, the presentment of
arrestees. The U.S. Attorney is CAUTIONED, however, that Rule 5(a)’s command that a
prisoner be presented to a magistrate without unnecessary delay does not mean when
optimally convenient. “The road to presentment before a magistrate for one accused of a crime
should not be paved only with good intentions,” and accordingly, “district courts will be
required to rule on the reasonableness in individual cases of any pre-arraignment delays
exceeding six hours.” United States v. Perez, 733 F.2d 1026, 1036 (2d Cir. 1984).

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                                  No. 12-40141

question him about the DVDs in light of their potential implications for Boche-
Perez’s immigration status. See, e.g., Gonzaga-Ortega v. Holder, 736 F.3d 795,
803-04 (9th Cir. 2013). It was reasonable for presentment to be delayed for
administrative processing by an hour or so to parole Boche-Perez into the United
States. See, e.g., United States v. Garcia-Hernandez, 569 F.3d 1100, 1102, 1106
(9th Cir. 2009) (delay to administratively process at the border and determine
whether to file criminal charges was reasonable); United States v. Collins, 462
F.2d 792, 795-96 (2d Cir. 1972) (delay for administrative processing was
reasonable); United States v. Fontane-Medina, No. 11-20492-CR, 2011 WL
6826811, at *19-*21 (S.D. Fla. Nov. 27, 2011) (delay to determine immigration
status was reasonable).
      Boche-Perez raises two objections to the reasonableness of the immigration
processing. First, he objects to the idea that he was asked questions at all after
the U.S. Attorney’s office decided to prosecute. However, as long as the delay
was not for the purpose of interrogation and was reasonable, as the district court
expressly found here, the McNabb-Mallory doctrine does not institute a flat ban
on asking any questions. See, e.g., Carter, 484 F. App’x at 457-58; Redlightning,
624 F.3d at 1107-08; Yunis, 859 F.2d at 955-57, 967-69; United States v. Purvis,
768 F.2d 1237, 1239 (11th Cir. 1985); Collins, 462 F.2d at 795-96; Johnson, 467
F.2d at 634; O’Neal, 411 F.2d at 136; Price, 345 F.2d at 262; Rogers, 330 F.2d at
539; Mallory, 259 F.2d at 798; Yong Bing-Gong, 594 F. Supp. at 257, aff’d, Bing-
Nam, 788 F.2d at 4; Michel, 2013 WL 686690, at *3-4; Annoreno, 2009 WL
3518155, at *4; Pena Ontiveros, 547 F. Supp. 2d at 339; Haouari, 2000 WL
1593345, at *7; Berkovich, 932 F. Supp. at 587-89; cf. McDaniel, 441 F.2d at
1161. And because Boche-Perez was provided Miranda warnings, and confessed
so quickly after immigration processing began, this is not a case where we need
to explore the outer-boundaries of pre-arraignment questioning under McNabb-
Mallory during periods of otherwise reasonable delay.

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                                  No. 12-40141

      Second, Boche-Perez objects that our determination runs contrary to the
Ninth Circuit’s ruling in United States v. Valenzuela-Espinoza. See 697 F.3d 742
(9th Cir. 2011). But Valenzuela-Espinoza is distinguishable. First, the delay
from when the illegal materials were found to when the confession occurred was
far longer in Valenzuela-Espinoza than here—in Valenzuela-Espinoza, the
defendant was arrested at 11:15 am, and did not confess until sometime after
7:30 p.m. By contrast, Boche-Perez had only a four-hour delay between the
discovery of the incriminating materials and the confession, and indeed, Boche-
Perez confessed within one hour of actually being arrested. Second, Valenzuela-
Espinoza indicated that delays in presentment were justifiable when caused by
“the unavailability of government personnel . . . necessary to completing the
arraignment process.” Id. at 752. The U.S. Attorney is undoubtedly a person
necessary to completing the arraignment process, and the record here indicates
that presentment was delayed beyond Boche-Perez’s 4:15 p.m. confession largely
because the U.S. Attorney’s office was unavailable to review any complaint that
was drafted on such a tight turnaround. Third, the context for the delays is
different—Valenzuela-Espinoza dealt with a morning discovery of illicit
materials and a morning arrest in metropolitan Tucson. Moreover, numerous
agents were present at the time of arrest, eight of whom the court determined
were “available to complete Valenzuela-Espinoza’s” arraignment. Id. at 752. By
contrast, Boche-Perez’s delay occurred at one of the busiest ports of entry in the
country, and there has been no showing that there were surplus personnel
available to review the criminal complaint, process Boche-Perez for immigration
purposes, and transport him to the magistrate before 4:15 p.m. If anything, the
record shows just the opposite, and it is Boche-Perez’s burden to substantiate a
McNabb-Mallory violation.
      In light of the totality of the circumstances, and especially given the added
complications for law enforcement procedures created by the need for

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                                  No. 12-40141

immigration processing at ports of entry, this case is far closer to Garcia-
Hernandez, 569 F.3d at 1106, than to Valenzuela-Espinonza. Accordingly, we
reject Boche-Perez’s suggestion that somehow Ninth Circuit jurisprudence
compels the suppression of Boche-Perez’s confession, and we further decline to
issue an advisory opinion concerning the outer-bounds of the McNabb-Mallory
doctrine as applied by our circuit and the Ninth Circuit.
      The totality of the circumstances, when considered under the McNabb-
Mallory cases, indicates that the Government’s delay in not presenting Boche-
Perez by approximately 4:15 p.m. was reasonable. Because Boche-Perez’s 4:15
p.m. confession happened during a period of reasonable delay, the district court
properly denied the motion to suppress notwithstanding the lengthy delay before
he was presented.     Even if we assume arguendo that the delay became
unreasonable at some point before Boche-Perez was presented to the magistrate,
any subsequent illegality “does not retroactively change the circumstances under
which” Boche-Perez confessed. Mitchell, 322 U.S. at 70.
            (ii) The 6:00 p.m. Written Confession
      Boche-Perez’s second confession occurred at around 6:00 p.m. After Boche-
Perez’s oral confession at approximately 4:15, the CBP officer began the
preparation of a written confession. The CBP officer took from approximately
4:20 p.m.-5:10 p.m. to prepare the statement. Boche-Perez then reviewed the
statement, and signed the written confession at 6:00 p.m.
      That delay was also reasonable. Reasonable delays for transferring an
oral confession into writing do not trigger a McNabb-Mallory violation. See, e.g.,
Davis, 532 F.2d at 25-26; Candella, 469 F.2d at 175-76; Johnson, 467 F.2d at
636; Long, 360 F.2d at 832-33; Vita, 294 F.2d at 532; Haines, 188 F.2d at 554-55;
Delamarra, 275 F. Supp. at 4-5. As the D.C. Circuit observed in Metoyer v.
United States:



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                                    No. 12-40141

   [T]he real thrust of the objection goes to the very rendering of the
   confession to written form. This is an attack upon a fundamental concept
   of the law that has always favored and encouraged the writing of freely
   expressed declarations which are known to be of crucial importance in
   order to minimize litigation and disputes as to just what was said. Delay
   does not mean mere passage of time; it means passage of time during
   which that which should and could be done is not done.

250 F.2d at 33. Moreover, even if the delay for translating Boche-Perez’s oral
confession into a written confession was unreasonable under McNabb-Mallory,
any error was harmless. Boche-Perez’s 6:00 p.m. written “confession overlapped
in material respects” with his 4:15 p.m. oral confession and as such, any error
is necessarily harmless. United States v. Mansoori, 304 F.3d 635, 662 (7th Cir.
2002); see also Carter, 484 F. App’x at 457-58; United States v. Ragland, 434 F.
App’x 863, 869 (11th Cir. 2011).
            (iii) The 9:00 p.m. Oral Confession
      Boche-Perez’s final confession occurred at 9 p.m. when he confessed to the
ICE agent that he possessed additional illegal pornography at his home in
Arkansas. We decline to address Boche-Perez’s arguments because the record
is hazy and even if we were to determine that the confession should have been
excluded under McNabb-Mallory, any error would be necessarily harmless
(under any standard of review) with respect to the offense to which Boche-Perez
pleaded guilty. He had already twice confessed to that crime, and his earlier
confessions were admissible under the McNabb-Mallory doctrine.              Though
Boche-Perez did confess to additional criminal activity in his 9:00 p.m. interview,
he cannot show any prejudice in this particular case from the district court’s
refusal to suppress the confession because (1) he did not plead guilty to any of
those additional offenses, and (2) the district court declined to consider the
additional evidence that the government seized following the third confession at
Boche–Perez’s home in Arkansas with respect to sentencing. As such, we do not
consider his allegation of error.

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                                  No. 12-40141

2) Voluntariness
      Boche-Perez also challenges the voluntariness of his three confessions. To
determine whether a confession is voluntary we consider the totality of the
circumstances pursuant to 18 U.S.C. § 3501(b). Cantu-Ramirez, 669 F.3d at 625-
26. The factors used in this assessment are the length of time between arrest
and before arraignment, whether the defendant was aware of the potential
charges against him when he gave his statement, whether he was apprised of his
rights, whether he had counsel, whether the delay was for purposes of
interrogation, and whether the interview was “hostile.” Id. at 625-27; see also
Bustamante-Saenz, 894 F.2d at 120.
      The totality of the circumstances shows that Boche-Perez’s statements
were voluntary even though he was not presented to a magistrate judge until
two days after his detainment. See Cantu-Ramirez, 669 F.3d at 625-27. In
particular, prior to his confession, he was aware of the charges against him and
validly waived his rights, and nothing in the record indicates that “the delay was
for the purpose of obtaining a confession.” Id. at 626. Moreover, the 4:00 p.m.
interview, during which Boche-Perez first confessed, lasted approximately one
hour. The room in which the interrogation took place was large with officers
walking in and out, and several other individuals were also being detained there.
While Boche-Perez suggests that there was no evidence that he was given water
or bathroom breaks, he does not affirmatively state that he was not given
adequate water or breaks, and the testimony of the agents who interviewed him
indicated that he did receive both water and breaks to visit the restroom. After
waiving his rights immediately before the interview, Boche-Perez admitted that
he knew the DVDs in his luggage contained child pornography and then signed
a written statement to that effect. Although Boche-Perez was handcuffed during
the interview, there is no evidence that his interviewer or any other agent
threatened Boche-Perez or promised him anything.            See United States v.

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                                  No. 12-40141

Cardenas, 410 F.3d 287, 295 (5th Cir. 2005) (“Such basic police procedures as
restraining a suspect with handcuffs have never been held to constitute
sufficient coercion to warrant suppression.”). As such, the district court did not
err in concluding that the delay did not result “in an interrogation that was so
‘lengthy, hostile, or coercive,’ that it would tend to overwhelm [Boche-Perez’s]
will” and result in an involuntary confession. Cantu–Ramirez, 669 F.3d at 627.


3) Miranda
      Finally, Boche-Perez tries to suppress his 9 p.m. confession on the grounds
that he was not read his Miranda rights directly prior to the interview. This
argument is without merit. By 9 p.m. Boche-Perez had already waived his rights
twice, and he has not challenged the voluntariness of his waivers. Additional
warnings were not required. See Soffar v. Cockrell, 300 F.3d 588, 592-93 (5th
Cir. 2002) (en banc).
                                CONCLUSION
      We AFFIRM the district court.




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                                  No. 12-40141

JAMES L. DENNIS, Circuit Judge, concurring:
      Carmen Boche–Perez moved to suppress the confessions he made to
arresting officers while in custody on the ground that they were involuntary and
that the government’s two-day delay in presenting him to a magistrate judge
required suppression under the McNabb–Mallory exclusionary rule. See 18
U.S.C. § 3501(c); FED. R. CRIM. P. 5(a)(l)(A); Corley v. United States, 556 U.S. 303
(2010); Mallory v. United States, 354 U.S. 449 (1957); McNabb v. United States,
318 U.S. 322 (1943). I agree with the majority’s conclusions that the confessions
were voluntary and that Boche–Perez’s first two confessions need not be
suppressed because the government’s delay in obtaining those confessions was
reasonable under the circumstances and not calculated to extract a confession,
and that the admission of his third confession, which occurred at 9:00 p.m. on
the evening he was arrested, was at most harmless error. I write separately to
emphasize two points. First, it is only under the unusual circumstances of this
case that Boche–Perez’s 9:00 p.m. confession is harmless error. Second, while
I do not approve of the government’s extended delay in presenting Boche–Perez
to a magistrate judge after he made incriminating statements to investigators,
the Supreme Court has held that an otherwise admissible confession obtained
during a period of lawful detention is not subject to suppression merely because
of the government’s subsequent failure promptly to take the confessing
defendant before a magistrate. United States v. Mitchell, 322 U.S. 65, 70-71
(1944). Accordingly, I concur in the majority’s opinion affirming the denial of
Boche–Perez’s motion to suppress all three of his confessions.
                                         I.
      First, there is a strong argument that Boche–Perez’s third confession was
made during a period of unnecessary delay under McNabb–Mallory and Corley.
After Boche–Perez first confessed, he was forced to wait nearly six more hours
before he was booked into the Webb County jail at 11:40 p.m. that night. Much

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                                  No. 12-40141

of that delay is due to the fact that the government inexplicably waited three
hours before interviewing Boche–Perez again at approximately 9:00 p.m. The
government offered no justification for this delay, and Agent Silva’s testimony
suggests that he reinterviewed Boche–Perez at 9:00 p.m. to get more information
that would enable him to obtain a search warrant of Boche–Perez’s home in
Arkansas. Cf. Mallory, 354 U.S. at 455 (“[T]he delay must not be of a nature to
give opportunity for the extraction of a confession.”); United States v. Liera, 585
F.3d 1237, 1243 (9th Cir. 2009) (holding delay to obtain a second confession,
which, unlike the first confession, could be audio-recorded, was unreasonable
because “[a]n audio recording of Liera’s statements was . . . unnecessary to
complete the arraignment process or determine whether to file criminal
charges”).
      However, due to the unusual circumstances of this case, I agree that the
district court’s failure to grant Boche–Perez’s motion to suppress his 9:00 p.m.
confession was harmless error. Cf., e.g., Arizona v. Fulminante, 499 U.S. 279
(1991) (holding that harmless-error analysis applies to admissibility of coerced
confessions); Premo v. Moore, 131 S. Ct. 733, 745 (2011) (discussing, through lens
of § 2254 and Strickland, application of Fulminante’s harmless-error rule to
cases involving plea bargains when the defendant might have moved to suppress
his confession but failed to do so). Boche–Perez never asked this court or the
district court to differentiate between the content of the 9:00 p.m. confession and
the earlier confessions. Indeed, the 9:00 p.m. confession largely duplicated and
corroborated the incriminating content of Boche–Perez’s earlier confessions, and
even without considering the 9:00 p.m. confession, there was ample evidence
against Boche–Perez both in the form of the DVDs agents discovered in
Boche–Perez’s luggage and his earlier confessions. The 9:00 p.m. confession also
did not affect Boche–Perez’s sentence because the district court declined to
consider the additional evidence that the government seized following the third

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                                    No. 12-40141

confession at Boche–Perez’s home in Arkansas. Additionally, the government
gave no indication that its prosecution depended on the admission of
Boche–Perez’s 9:00 p.m. confession—or any confession at all—because the U.S.
Attorney’s office indicated its willingness to proceed with prosecution before
Boche–Perez confessed, and Boche–Perez does not now deny that he knew that
the DVDs contained child pornography. Cf. Premo, 131 S. Ct. at 745 (explaining,
in § 2254 case, that “even on direct review,” the erroneous admission of the
defendant’s confession likely would have been harmless error because “evidence
against [the defendant] was strong[;] [t]he accounts of [his] [two] confession[s]
. . . corroborated each other[;] [t]he State gave no indication that its . . .
prosecution depended on the admission of the police confession[;] and [the
defendant] does not now deny” that he committed the offense to which he
pleaded guilty).      Therefore, I agree with the majority that the denial of
Boche–Perez’s motion to suppress his 9:00 p.m. confession was at most harmless
error.
                                          II.
         As I stated at the outset, I also agree with the majority’s conclusion that
the delay in presentment following Boche–Perez’s confessions does not warrant
the suppression of his confessions.       That delay—because it occurred after
Boche–Perez confessed—does not require the suppression of his confessions. See
Mitchell, 322 U.S. at 70-71; Corley, 556 U.S. at 306 (“[A]n arrested person’s
confession is inadmissible if given after an unreasonable delay in bringing him
before a judge.”) (emphasis added).        However, I am not unsympathetic to
Boche–Perez’s complaint that he was forced to spend two nights in jail before
being presented to a magistrate. The government offers no explanation for this
delay other than its compliance with the U.S. Attorney’s office policy that
requires arresting officers to submit the paperwork for a defendant’s initial



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                                  No. 12-40141

appearance by 4:00 p.m. on the day before the defendant is presented to a
magistrate judge.
      After arresting Boche–Perez and obtaining both written and oral
confessions and securing his prosecution by the U.S. Attorney’s office, the
government delayed presenting Boche–Perez to a magistrate judge for two days
after the government agreed to prosecute him. The U.S. Attorney’s office agreed
to prosecute Boche–Perez at 3:22 p.m. on Wednesday, October 27, 2010, and
agents booked him into the county jail that same evening. The federal building
was within a ten-to-fifteen minute drive from where Boche–Perez was arrested,
and agents confirmed that they had everything they needed to proceed with a
prosecution. The record does not reflect that the delay was due to a shortage of
government personnel or judges necessary to complete the arraignment process.
Nevertheless, Boche–Perez was forced to spend two nights in county jail before
he was presented to the magistrate judge on the morning of Friday, October 29,
2010. Under the circumstances, the arresting officers did not take Boche–Perez
“without unnecessary delay before a magistrate judge,” FED. R. CRIM. P.
5(a)(l)(A), thereby violating the requirement that an arresting officer take an
arrestee before a magistrate “as soon as he reasonably c[an],” Corley, 556 U.S.
at 306.
      While, as noted above, the government’s extended delay in presenting
Boche–Perez to a magistrate judge does not require the suppression of
Boche–Perez’s confessions, see, e.g., Mitchell, 322 U.S. at 70-71, the government’s
conduct in this case flouted the letter and purpose of Rule 5(a) and the prompt-
presentment requirement. “[R]equiring that the police must with reasonable
promptness show legal cause for detaining arrested persons . . . constitutes an
important safeguard—not only in assuring protection for the innocent but also
in securing conviction of the guilty by methods that commend themselves to a
progressive and self-confident society. . . .       [It] checks resort to those

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                                       No. 12-40141

reprehensible practices known as the ‘third degree’ which, though universally
rejected as indefensible, still find their way into use. It aims to avoid all the evil
implications of secret interrogation of persons accused of crime.” Mallory, 354
U.S. at 452-53 (quoting McNabb, 318 U.S. at 343-44) (quotation marks and
alteration omitted). Indeed, the Fourth Amendment requires that a defendant
receive a judicial determination of probable cause promptly after arrest or
detention. Gerstein v. Pugh, 420 U.S. 103, 114 (1975); see Cnty. of Riverside v.
McLaughlin, 500 U.S. 44, 56-59 (1991) (holding that Riverside County’s failure
to provide prompt judicial determinations of probable cause was susceptible to
a Fourth Amendment challenge brought pursuant to 42 U.S.C. § 1983).
       I do not think that the government’s extended delay in presenting
Boche–Perez to a magistrate judge after he confessed can be justified solely by
the 4:00 p.m. deadline imposed by the U.S. Attorney’s office. As the Supreme
Court elucidated in McLaughlin, for Fourth Amendment purposes, simple
administrative rules or practices are unlikely to justify a lengthy delay in
presentment. See 500 U.S. at 57, 58 (suggesting that while “practical realities”
outside of arresting officers’ control might render a delay reasonable, at least for
Fourth Amendment purposes, simple administrative rules or practices—there,
Riverside County’s policy of offering combined probable-cause determinations
and arraignments within two days of arrest, exclusive of Saturdays, Sundays,
or holidays—are unlikely to justify a lengthy delay).1                  Applying similar
reasoning, in United States v. Valenzuela–Espinoza, 697 F.3d 742 (9th Cir.


       1
         While McLaughlin addressed government officials’ obligations under the Fourth
Amendment, McLaughlin provides apt guidance because it considered a factual scenario very
similar to the one presented in our case and applied a standard quite similar to the
prompt-presentment requirement set forth in Corley and Federal Rule of Criminal Procedure
5, namely, that the government must offer probable-cause proceedings “as soon as is
reasonably feasible.” McLaughlin, 500 U.S. at 57; cf. FED. R. CRIM. P. 5(a)(l)(A); Corley, 556
U.S. at 306 (explaining that the prompt-presentment rule requires that an arresting officer
must bring an arrestee before a magistrate “as soon as he reasonably c[an]” (emphasis added)).

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                                     No. 12-40141

2011), the court held that delay in presentment due to a court policy requiring
paperwork for an initial appearance to be submitted by 10:30 a.m. on the
intended day of the hearing—a policy nearly identical to the one here—was
unreasonable and unnecessary under Rule 5(a) and Corley–McNabb–Mallory.2
       That is not to say that all delay caused by administrative rules will
necessarily be unreasonable. I share the majority’s appreciation for the need for
some administrative deadlines to streamline busy dockets. For example, “courts
have found it permissible for the police to wait for regular business hours to
bring the suspect to court.” CHARLES ALAN WRIGHT & ANDREW D. LEIPOLD, 1
FEDERAL PRACTICE & PROCEDURE § 73, at 185 & n.21 (4th ed. 2008); see, e.g.,
United States v. Redlightning, 624 F.3d 1090, 1109 (9th Cir. 2010) (“[N]o
magistrate judge was reasonably available until 2:30 p.m. on October 3, when
the next arraignment calendar commenced, so the delay until 2:30 p.m. on
October 3 was reasonable.”). Here, though, Boche–Perez was not brought
promptly to a magistrate at the next arraignment calendar, on the Thursday
after he was arrested; instead, he was forced to remain in jail until Friday
morning. See United States v. Wilson, 838 F.2d 1081, 1085 (9th Cir. 1988)
(“Even assuming that the delay overnight was reasonable, there is no reasonable
excuse why Wilson was not promptly arraigned at the beginning of the
arraignment calendar the next day.” (footnote omitted)); Valenzuela–Espinoza,
697 F.3d at 751 (“An internal policy agreed upon by prosecutors and magistrate
judges cannot trump the requirements of a federal statute and the Federal Rules
of Criminal Procedure. . . . It is not the longstanding principle embodied in
McNabb–Mallory that must give way to local paperwork needs, but the local
paperwork policy that must be tailored to the requirements of McNabb–Mallory,


       2
         In Valenzuela–Espinoza, unlike in the present case, the defendant confessed during
this period of unnecessary delay—not before it—therefore requiring the suppression of his
confession.

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                                 No. 12-40141

its implementing statute, and rule.” (internal quotation marks and citations
omitted)). To my mind, the extended delay that occurred in Boche–Perez’s case
casts significant doubt upon whether the 4:00 p.m. policy is tailored to the
requirements of McNabb–Mallory.        Such administrative rules should not
routinely cause extended delays in presentment merely because they are
convenient: convenience is not necessity.
      As I have said, I agree with the majority that the two-day delay in
presenting Boche–Perez to a magistrate does not require the suppression of his
self-incriminating statements to investigators in this case. See Mitchell, 322
U.S. at 70.    That is not to say, however, that the delay in presenting
Boche–Perez to a magistrate was reasonable or necessary. “Such delay . . . is not
acceptable as standard operating procedure; far from it.” United States v.
Perez–Bustamante, 963 F.2d 48, 54 (5th Cir. 1992); see Miranda v. Arizona, 384
U.S. 436, 463 n.32 (1966) (stating, with respect to the McNabb–Mallory rule,
that the Court’s “decision today does not indicate in any manner, of course, that
these rules can be disregarded. When federal officials arrest an individual, they
must as always comply with the dictates of the congressional legislation and
cases thereunder.”).
      In conclusion, I concur but write separately to amplify the majority’s
admonition, ante at n.7, that a government agency’s internal timetables cannot
ipso facto justify extended delays in presentment.




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