like to reserve three minutes for rebuttal here the agent's failure to promptly bring mr thompson before the magistrate or secure his waiver was unnecessary and unreasonable under eighteen u s c thirty five a one c and the mcnabb malory role when the reason for their delay was to convince him to cooperate the distinction the government makes between cooperation and confession is artificial and that's illustrated in the supreme court's opinion in chorley which essentially uses the t the mcmahon malory rule is designed to prevent just that kind of pressure but it's just to cooperate or isn't that ok as opposed to pressuring him to confess well so a confession is a logical antecedent or at least a condition of cooperation what if we find it was just to see if he would cooperate not to it was a confession i don't think you could have one without the other if you imagine the cooperation of a defendant you can't for instance in a drug case like mr thompson's you can't  defendant saying i'm not a drug dealer but let me give you some information about my supplier with which it doesn't work so your view is that you have to start with a confession in order to get him to court it's at least implied or you can't give information about your involvement in a drug what this was about but if it is as you say officers this is what i know about what they're doing that at least would give information about knowledge about the conspiracy to some degree so it may be possible is certainly not what happened here because in the course of the cooperation that occurred here the defendant admitted to possession of kilograms of cocaine admitted to distributing cocaine morning and that purported attempt to secure cooperation or the attempt to secure the confession was the purpose of the delay in this case because at the point at which the arrest occurred they remove thompson from the home they had multiple agents present at the site of the round as a host doing this for what they did is after removing him from the home they brought him back in and they seated him at the table where they were collecting the evidence and cataloging the evidence and while he sat there for the entirety of the search even though they had multiple agents present at that location they played wire taps for him to quote show him the strength of our case so that he would be more willing to cooperate and is there anything inherently wrong why you're pate's there's nothing inherently wrong with it the question is they they they had him for a total of six and a half hours prior to the beginning of his confession that exceeds the safe harbor that is provided in section thirty five zero one c at that point once the safe harbor is exceeded the section thirty five a one c requires that we look to the make now mallory rule and we analyze was the time that was spent unnecessary or unreasonable given the availability and ability of the veil ability of a magistrate in the ability of the officers to get the defendant they had no shortage of officers they were within striking distance of los angeles at most an hour an hour and a half away there was a morning pardon there was a bill for the depending on traffic but they testified it took them no more than an hour to an hour and a half to get there so at seven am they had him in a car if you have to have a magistrate available and there was a morning docket that morning she was talking about nine o'clock they saw they presented no testimony about what the time of the is it would depend on the well the cutoff is just when when paperwork or or getting on the list of the docket would occur and that he says that that getting on a list is not an excuse for not getting before a magistrate missing the actual docket is a different story but there's no evidence that that's what happened here nor did the agents find out when the afternoon docket was happening or whether they could get the case specially listed more importantly they never tried to get a waiver which would have been the cooperation discussions that they have that person sign a waiver for the court doesn't need to establish that rule the rule is the rule established by thirty five zero one c and the mcnabb malory rule which is that agents exceed th six our safety harbor which is awake the safe harbor six hours they have to get him to court if they exceed that time then the court analyzes whether the time that they took was unreasonable or unnecessary  we're focusing on this six hours and fifteen minutes you will be focusing rather on the time that it took for actual presentment because i've fifteen minutes south plus its fifteen minutes sounds like the response could be that's the minimum but should our focus instead be on when the actual present was well so we i think it's important that we don't look at six hours at all once we're beyond the safe harbor so once once the safe harbor elapses the six hours drops out of the equation and what we're left with is the mcnabb malory rule itself and under mcnabb valerie it's not the length of time that matters it's the reasons for the delay that matter and i think it's worth noting that in the now one of the defendants was only interrogated for five to six hours and under mallory one of the defendants was the defendant was interrogated for seven hours  and it doesn't matter if the defendant is being questioned for that entire period of time or not and in fact in mcnabb in malory in chorley the defendant was not interrogated for that entire period of time and coralie is a good example in chorley as opposed to in this defendant was simply held for three and a half hours at the police station and then taken to a hospital for three and a half hours and then taken to the f b i where they spent some time trying to persuade him to cooperate before he eventually confessed the solution here would be suppression of the confession correct does that make a big difference in your case so the government argues that that there would be harmless error here and are let me start by saying our briefing makes an error in that we argued in the brief that the government would have to prove harmlessness beyond a reasonable doubt that's not the standard it's simple harmlessness because this is not a constitutional error but the government can't even meet that harmless standard here because we have a conditional guilty plea and so the question is not what the evidence might have been at trial whether the error here would have affected the guilty plea and that's a very difficult standard for them to me powerful evidence and the supreme court has recognized the unique power of a statement as recently as instilling their uniquely powerful two juries but in particular they are uniquely powerful to defendants the idea of going to trial in a case in which your own statement is going to wiretaps the majority of which needed to be interpreted by the government and which also involved cooperate or sore subject it involved the allegation that he spent more money than he should have been able to spend given his job involve seizure of drugs but the seizure of drugs was also subject to attack based on the forensic evidence fingerprint evidence we know is open to attack these days in light of the national academy of sciences report and also there was the issue of you know which of the drugs did he know about which ones did he not know about and so it goes to at least the issue of relative culpability are you thinking about the types of delay that have been permissible versus the type of delay here  concerned i presume is you know how one defines cooperation which of course has been the majority of time and here interrogation first cooperation it would seem that giving the law enforcement that much discretion would could be problem out of time if i could answer that question i would have two responses one is that the traditional exceptions to the nec now malory will focus on the ability to get the defendant to the magistrate so it's the time and the distance to the magi strate it's humanitarian reasons it's reasons that have to do with practical obstacles those cases the second response is that those cases which have provided exceptions for cooperation involve instances where the defendant immediately volunteered to cooperate not cases in which they did then it was pressured to cooperate over time as occurred here  she was here please the court my name is michael ivory i'm an assistant u s attorney you know pittsburgh the morning hours morning morning the one thing i think this court should take into account is occurred in los angeles you had two officers from pittsburgh who were involved in the search after the impact team left i believe there were six or seven officers or agents involved in it but you're not arguing that logistics is is the reason that we got to and the present requirement should be set aside because that's of a different nature so the clock shouldn't be running no i'm not saying in fact those are considerations that factor into the overall reasonable miss of the delay in the case well there's no logistical reason similar to the ones that have been approved by other courts with a delay right so therefore really the only reason for the delay was investigating or instigating or finding out whether he cooperate no that's not nice and accurate your honor again it took time to search the house if you told me that's two and a half hours right where it's six hours and fifteen minutes that's you know take a a person arrested to a magistrate within six hours so and just greenway was talking about two significant events the search in the travel right what prevented you from bringing the prisoner to a magistrate within six hours for the first session other than those two events agent's trouble checked and he testified that they had missed the morning docket now we don't know how the mind will know what did you do that that resulted docket that's the question it was it was the time expended during the search as well as the time for transport in the type of process i decided then that what prevented you then from missing the second session mr thompson began cooperating in the afternoon denied in the afternoon i believe at one thirty in the afternoon he indicated that he was willing to cooperate always late exactly sixteen minutes after the six hours had expired minutes fifteen minutes fifteen minutes and this is not a case where mr thompson's cooperation consists of a confession but what are you asking us if it's if it's not cooperation that you want to as the focus on that that then what is it because when we look at the other reason the other bases for a reasonable news analysis the logistical you also have to consider when mr johnson actually had his initial appearance which was forty eight hours after the arrest that was what i was concerned they heard something new it's helpful because two days later yes it is because during that time mr at that time period mr thompson is proactively cooperating he's trying to set up a deal against one of his co equal members of the conspiracy penalize the fandom who later going the course of interviewing an agent are being a bit of interacting with they just decide to cooperate and then as opposed to the guy he's like you got me i'll go with every one means i wasn't offended by saying that cooperate getting what would have happened if mr thompson had been driving if we had been friday mr thompson to his initial appearance for the afternoon docket and he says you know something i've changed my mind i want to go back i do want to cooperate i want to get a five k well because they have cooperate you got to fess up before you're interested in cooperate that's usually what happens well isn't that then the purpose for holding him during that six hour period to have him confess no  effect of what you're asking us to do is to let our mater to law enforcement using this six hours to elicit cooperation and if there are unable to within the six hours to go past the six hours because if our objective is cooperation it's ok whether whether you perceive that or not that is what you're asking us to do and the de lay has to be soley for the purpose of extracting a interpreted that afterwords i'm still trying to get my mind around me she said the processing was necessary and i agree what is the magic about processing that makes it have to her before going the magistrate why couldn't you if you know that you didn't know if  until their initial appearance after their initial appearance they were made it to the marshal service you tell me that the procedure is such that the reason the answer my question is well that's why we do it that's what you're told the reason that  you had to process him before you took him to magistrate is because that's the way we do it i can speak to practice isn't it western district of pennsylvania which is what does happen they're taken to why does it have to happen that way what is the orly justice souter says that after the six hours but one of confession comes even later than the six hours the exclusionary rule applies and courts have to see whether the way was unnecessary or unreasonable and you obviously want us to say that cooperation provides the exception to the unnecessary or unreasonable  and the question is why substantial assistance to the court's attention and can move to reduce the defendant sentence so you know there's an assessment made by us by the u s attorney's office and then it's presented to the court in terms of what the cooperation is i mean again we're talking about a situation where the cooperation does play out you know really how many agents were involved in the search of the home in california their war absent the impacts why the impacts squad thompson testify that an officer was going through the place with a videotape other than the time to search other than the travel time with your heating to prevent any of these agents given that you had at least seven or eight agents there from taking him conceivably somebody probably could but again there are considerations to be taken into account the agents almost angelus who are not involved in this investigation you've got two guys from pittsburgh who know what we're looking for know the relative evidentiary value of entirely within the control of the law enforcement agency the government adverted to the purpose of the rule here being to avoid the third degree but the case law is clear that that's not the only purpose the other purposes include safeguarding the misuse of the law enforcement process and assuring that the defendant is advised of his rights has an opportunity to be advised of his rights by and you draw magistrate has an opportunity to consult with counsel and those are things that the agents that we commented in the briefing on potential inadequacies in the way of her but that's not the primary thrust of our challenge it does seem that there were some problems with the waiver but the point is that the waiver was not signed in the time we presented to our client or c or signed by him in a timely fashion and that's really what's important here for purposes of the rule the agencies could have had him sign that at the moment of arrest if they wanted to pursue his cooperation they could have had him sign it at any time during the six hour window under the first circuit decision in shock they could have had him sign it at the moment they realize the six hour window was elapsing and they simply chose not to do that what's more they gave no explanation for that and that is really the biggest problem with this record is that the agents were absolutely unable to explain why they did not take mr thompson to a magistrate that morning they they in fact appeared not to even investigate what the opportunities were to take him before a magistrate and the reason that they gave was not that they had administrate over law enforcement duties to pursue but that it's their policy not to take people that they want to have cooperate before a magistrate and they said that the reason for that is that they're concerned about making cooperation public but there could have been much more public to the other coconspirators in this case than the fact that agents were simultaneously executing warrants in four different states that morning and if public relation of the cooperation was their concern then they had a simple piece of paper that they could have asked mr thompson to sign the reason they didn't do that is they knew he wouldn't sign it because they had not yet completed pressuring him illness yes so let's let's say he signed the appropriate waiver at the time that he negotiated cooperation which was we all know fifteen minutes after it is thirty minutes afterwards so that thirty minutes ok