                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 18 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30064

              Plaintiff - Appellee,              D.C. No. 3:07-cr-00492-HZ-1

  v.
                                                 MEMORANDUM*
ROBERT VINCENT MENDEZ,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Marco A. Hernandez, District Judge, Presiding

                        Argued and Submitted July 8, 2014
                                Portland, Oregon

Before: PREGERSON, PAEZ, and WATFORD, Circuit Judges.

       Defendant Robert Vincent Mendez appeals his conviction of four counts of

bank robbery, in violation of 18 U.S.C. § 2113(a). Mr. Mendez argues that his

conviction should be reversed due to: (1) violation of the Speedy Trial Act; (2)

violation of the Sixth Amendment’s Speedy Trial Clause; and (3) violations of the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Miranda rule, the McNabb-Mallory rule, and due process. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      1. The Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq., provides that a

trial “shall commence within seventy days from the filing date . . . of the

information or indictment, or from the date the defendant has appeared before a

judicial officer of the court in which such charge is pending, whichever date last

occurs.” 18 U.S.C. § 3161(c)(1). “[T]he 70-day time period d[oes] not begin

running until [the defendant] first appear[s] before a judicial officer of the charging

district.” United States v. Wilson, 720 F.2d 608, 609 (9th Cir. 1983).

      Mr. Mendez did not make his first appearance before a judicial officer in the

District of Oregon — the charging district — until November 7, 2011.

Defendant’s trial was set for January 10, 2012, and his October 2012 trial took

place within 70 non-excludable days from the date of his first appearance in

Oregon. The district court therefore correctly denied Defendant’s motion to

dismiss for violation of the Speedy Trial Act.

      2. The Sixth Amendment guarantees that, “[i]n all criminal prosecutions,

the accused shall enjoy the right to a speedy . . . trial . . .” U.S. Const. amend. VI.

To determine whether a defendant’s Speedy Trial Clause right has been violated,

the district court balances the four Barker factors: “[1] whether delay before trial


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was uncommonly long, [2] whether the government or the criminal defendant is

more to blame for that delay, [3] whether, in due course, the defendant asserted his

right to a speedy trial, and [4] whether he suffered prejudice as the delay’s result.”

Doggett v. United States, 505 U.S. 647, 651 (1992) (citing Barker v. Wingo, 407

U.S. 514, 530 (1972)).

      The district court considered and properly balanced the Barker factors and

found Mr. Mendez’s Sixth Amendment Speedy Trial Clause right was not violated.

Reviewing de novo, see United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir.

1993), we agree that the Barker factors do not weigh in Mr. Mendez’s favor.

      3. Under the rule set out in Miranda, “[i]f the accused indicates that he

wishes to remain silent, ‘the interrogation must cease.’ If he requests counsel, ‘the

interrogation must cease until an attorney is present.’” Edwards v. Arizona, 451

U.S. 477, 482 (1981) (quoting Miranda v. Arizona, 384 U.S. 436, 474 (1966)).

      The district court found Mr. Mendez’s testimony that he requested an

attorney and asserted his right to remain silent not credible, and found the

testimony of law enforcement officers that Mr. Mendez remained silent throughout

his arrest both credible and consistent with the evidence. The district court did not

err in its resolution of these conflicting accounts, especially considering the

“special deference” paid to the court’s credibility determinations. United States v.


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Nelson, 137 F.3d 1094, 1110 (9th Cir. 1998); see also United States v. Wolf, 813

F.2d 970, 975 (9th Cir. 1987) (“Deference to the district court’s factual finding is

especially warranted here when the critical evidence is testimonial.”). There was

therefore no Miranda violation.

       Under the rule set out in 18 U.S.C. § 3501(c), McNabb v. United States, 318

U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957), any

statements made by a defendant more than six-hours after arrest and before the

defendant is presented to a magistrate (the “safe harbor” period) are presumptively

inadmissible. See United States v. Valenzuela-Espinoza, 697 F.3d 742, 749 (9th

Cir. 2011). The McNabb-Mallory rule applies only to suspects being held on

federal charges. See United States v. Alvarez-Sanchez, 511 U.S. 350, 358 (1994).

A delay in bringing an arrestee before a magistrate may be calculated from the time

of a state arrest “if state or local authorities, acting in collusion with federal

officers,” delay presentment. Id. at 359.

       Mr. Mendez was arrested on state charges, and was not detained on federal

charges until after he confessed. There is also no evidence of collusion between

state and federal officers. Moreover, federal agents were not notified of Mr.

Mendez’s arrest until a little more than three hours before Mr. Mendez confessed,




                                             4
thus putting the confession within the six-hour “safe harbor” period. Thus, Mr.

Mendez’s confession did not violate the McNabb-Mallory rule.

      An involuntary confession gained through police coercion violates due

process and requires the reversal of a conviction. See Gallegos v. State of Neb.,

342 U.S. 55, 63, 65 (1951).

      The district court properly held that Mr. Mendez voluntarily confessed and

was not coerced by law enforcement officers. After hearing the testimony of both

Mr. Mendez and the interrogating officers, the court credited the law enforcement

officers’ version of events — the officers explained to Mr. Mendez that they were

concerned about possible accomplices, and would need to search his family’s

homes if they believed his family members had aided in the bank robberies. This

statement had a legitimate investigative purpose, and was not coercive.

      We also reject Mr. Mendez’s argument that the district court failed to hold a

“formal voluntariness hearing.” The district court held an extensive hearing on the

motion to suppress, and multiple witnesses testified.

      AFFIRMED.




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