FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-10060

Plaintiff-Appellee, D.C. No.

v. 4:08-cr-00431-

CKJ-HCE-1 JULIO ALFONSO VALENZUELAESPINOZA, ORDER

Defendant-Appellant.  AMENDING

OPINION AND

DENYING

REHEARING AND

AMENDED

OPINION 

Appeal from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted

October 11, 2011—San Francisco, California

Filed December 28, 2011

Amended October 4, 2012

Before: Betty B. Fletcher, Stephen Reinhardt, and

A. Wallace Tashima, Circuit Judges.

Opinion by Judge B. Fletcher

12037
COUNSEL

Francisco Leon, Tucson, Arizona, for appellant Julio Alfonso

Valenzuela-Espinoza.

Dennis K. Burke, United States Attorney; Christina M.

Cabanillas, appellate Chief; and Bruce M. Ferg, Assistant

United States Attorney, Tucson, Arizona, for appellee United

States of America.

ORDER

This court’s opinion, filed December 28, 2011, is amended

by striking the words “United States v.” before “Liera” on

page 21390 of the slip opinion, replacing “1237,” with “at” in

12040 UNITED STATES v. VALENZUELA-ESPINOZA
the same line, and striking the words “(9th Cir. 2009)” in the

following line. It is further amended by replacing the word

“constitutional” with “longstanding” before the word “principle” on page 21392; by replacing the word “two” with “three”

after the word “identified” on page 21392; and by striking

“Here, the” on that page and inserting the following passage

before the words “district court”:

<Finally, delays necessary to determine “whether [a suspect] should be criminally charged” are also reasonable.

Garcia-Hernandez, 569 F.3d at 1106; see also Gamez, 301

F.3d at 1143 (explaining that delay was reasonable where it

“was impossible to determine with what kind of offense

Gamez would be charged” prior to questioning by Spanishspeaking agents).

The delay in presenting Valenzuela-Espinoza does not fall

into any of these categories and was not reasonable. First,

there is no suggestion that the delay was for humanitarian reasons.

Second, there were plenty of law enforcement personnel

available to complete Valenzuela-Espinoza’s arraignment.

The>

The opinion is further amended by striking the words

“create a” on page 21393 and replacing them with “make the

delay” and by striking the word “delay” in the same line,

before the word “under.” 

Following the words “under McNabb-Mallory” on that

page, but before section C., the opinion is amended by inserting the following passage: 

<Third, the record demonstrates that it was not necessary

to conduct any further investigation to determine whether

Valenzuela-Espinoza could be criminally charged. In its petition for rehearing, the government asserts that ValenzuelaUNITED STATES v. VALENZUELA-ESPINOZA 12041
Espinoza was arrested only for being in the United States illegally, and that until the search warrant was executed it could

not be determined if he would be charged with a criminal

drug offense or merely turned over to immigration authorities.

As a preliminary matter, the government did not raise this

argument in its initial briefing before this court, and its “failure to brief the issue results in waiver.” United States v.

Ewing, 638 F.3d 1226, 1230 (9th Cir. 2011). But in any event,

this argument is not supported by the record. The government

consistently asserted in its pleadings before the district court

that after Valenzuela-Espinoza exited the carport in “a cloud

of marijuana smoke” and told the officers that there was more

than ten pounds of marijuana inside the house, the government “had probable cause to detain the defendant for a criminal offense, possession of marijuana.” The government

maintained that when Agent Van Holsbeke smelled and saw

the marijuana smoke, he not only had probable cause to

believe that there was marijuana inside the house “but was

witnessing a crime being committed in his presence.” The district court accepted these arguments, expressly finding that

“[a]lthough Defendant Valenzuela-Espinoza was initially

arrested because of his presence in the United States illegally,

probable cause also existed regarding his involvement in

criminal activity.” There is simply nothing in the record to

support the claim that the officers needed to execute the

search warrant to determine whether they could charge

Valenzuela-Espinoza with possession of marijuana.>

The opinion is also amended by striking section III.C. in its

entirety. Finally, the first sentence in section IV., on page

21395, is struck as well. That section now begins with the

words “Rule 5(a).” 

With the opinion as amended, the Appellee’s petition for

panel rehearing and petition for rehearing en banc, filed April

10, 2012, is denied. The full court has been advised of the

petition for rehearing and rehearing en banc and no judge has

12042 UNITED STATES v. VALENZUELA-ESPINOZA
requested a vote on whether to rehear the matter en banc. See

Fed R. App. P. 35. No subsequent petitions for rehearing,

rehearing en banc, or rehearing before the full court may be

filed.

OPINION

B. FLETCHER, Circuit Judge:

Julio Alfonso Valenzuela-Espinoza appeals his conviction

for possession of marijuana with intent to distribute and conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841 and 846. Because the delay in

presenting Valenzuela-Espinoza to a magistrate was unreasonable, his statements made more than six hours after his

arrest must be suppressed under the rule announced in both

McNabb v. United States, 318 U.S. 332 (1943), and Mallory

v. United States, 354 U.S. 449 (1957). We therefore

REVERSE the district court’s denial of ValenzuelaEspinoza’s suppression motion, VACATE the conviction, and

REMAND for further proceedings. Because his conviction

must be vacated due to the McNabb-Mallory violation, we do

not address Valenzuela-Espinoza’s other challenges to his

conviction raised on appeal.

I.

Valenzuela-Espinoza was arrested on March 5, 2008, at a

house in Tucson, Arizona. On March 3, Immigration and Customs Enforcement (ICE) Agent Leon Van Holsbeke received

a tip from a confidential informant of “suspicious activity”

taking place at the house. After intermittently observing the

house on March 4 and the morning of March 5, Agent Van

Holsbeke decided to conduct what he described as a “knock

and talk.” Agent Van Holsbeke, along with two other officers

and a narcotics detection dog, approached the front door while

UNITED STATES v. VALENZUELA-ESPINOZA 12043
two officers positioned themselves around the back perimeter

of the property. Four additional officers waited down the

street. 

Before Agent Van Holsbeke reached the front door, however, he heard someone shouting, “Stop, police, stop,” and he

ran to the side of the residence to investigate. The two officers

positioned behind the house had stopped two men attempting

to leave the house through the back door. The officers told

Agent Van Holsbeke that another man — who turned out to

be the defendant, Valenzuela-Espinoza — had tried to run

from the residence, but had run back inside when the police

shouted. 

Agent Van Holsbeke returned to the front of the residence

and began walking toward the carport when he smelled burning marijuana. He approached a storage room at the back of

the carport, knocked, and announced himself as police.

Valenzuela-Espinoza opened the door and complied with

Agent Van Holsbeke’s direction to step out of the room.

Agent Van Holsbeke asked him if he lived at the residence;

if he was a U.S. citizen (because Valenzuela-Espinoza apparently spoke no English); and if he was in the United States

illegally. Valenzuela-Espinoza admitted that he was a Mexican national in the United States illegally. He was then

arrested, at approximately 11:15 a.m. Despite failing to

administer Miranda warnings, one of the other officers proceeded to ask him if there was contraband, weapons, or anyone else in the residence. Valenzuela-Espinoza said that there

was “a lot” of marijuana in the residence, nodding affirmatively when asked if it was more than ten pounds.1

Agent Van Holsbeke then sought a search warrant, which

was issued at 3:25 p.m. While Agent Van Holsbeke got the

warrant, the other eight officers “sat on the house” to “make

1The government later conceded that this statement was taken in violation of Miranda and did not introduce it at trial. 

12044 UNITED STATES v. VALENZUELA-ESPINOZA
sure no one else would come or go.” The officers executed the

search at 4:00 p.m. and seized 99.75 kilograms of marijuana

(about 220 pounds), two handguns, a digital scale, and several

cell phones. During this time, Valenzuela-Espinoza was

detained at the residence. He was brought to an ICE station

around 5:00 p.m. and questioned at 7:32 p.m. after being

advised of his Miranda rights. 

Valenzuela-Espinoza was given a Miranda waiver form

written in Spanish, and Agent Van Holsbeke, who speaks

Spanish, read the form to him as well. He refused to sign the

form. Agent Van Holsbeke testified that Valenzuela-Espinoza

explained that he had been told not to say anything and that

he was concerned about his family’s safety. At some point,

Valenzuela-Espinoza stated that he and the other suspects

knew about the marijuana, that another man had helped him

unload the marijuana into the house, and that he had agreed

to keep the marijuana at the house in exchange for $2500.

According to Agent Van Holsbeke, Valenzuela-Espinoza then

stated that perhaps he should speak to an attorney, and the

interview was terminated, at 7:50 p.m.. Valenzuela-Espinoza

was held in custody overnight and presented to a magistrate

judge the next day, March 6, 2008, at 2:00 p.m. 

II.

A grand jury indicted Valenzuela-Espinoza on three counts:

(1) conspiracy to possess with intent to distribute marijuana;

(2) possession with intent to distribute marijuana; and (3) possession of a firearm by an illegal alien. Valenzuela-Espinoza

filed a number of pre-trial motions, alleging among other

things that his refusal to sign the waiver form was an invocation of his Miranda rights; that he had been illegally seized

at the residence; that the affidavit in support of the search

warrant contained false and misleading information; and that

UNITED STATES v. VALENZUELA-ESPINOZA 12045
the delay in presenting him to a magistrate required suppression of his statements under the McNabb-Mallory rule.2

Magistrate Judge Hector C. Estrada held hearings on the

motions to suppress and issued a report and recommendation.

The magistrate recommended that Valenzuela-Espinoza’s

statements between 7:32 p.m. and 7:50 p.m. on March 5, 2008

be suppressed due to a McNabb-Mallory violation. The magistrate found that when Valenzuela-Espinoza was arrested for

being in the country illegally at 11:15 a.m. on March 5, “any

number of available agents” could have taken him ten miles

to the nearest magistrate for the daily 2:00 p.m. initial appearance. The magistrate concluded that the agents had instead

detained Valenzuela-Espinoza beyond the six-hour “safe harbor” of 18 U.S.C. § 3501(c) “in order to question him regarding drug trafficking” and that this detention was unreasonable.

The magistrate also concluded that there had been no illegal

seizure but that the evidence obtained in the search should be

suppressed because the search warrant affidavit relied on false

statements and selective omissions. 

Both parties filed objections to the magistrate’s report and

recommendation. The district court affirmed the magistrate’s

conclusion that there was no illegal seizure but rejected the

conclusion that the search warrant affidavit failed to establish

probable cause once all false or misleading statements were

excised. 

The district court also rejected the magistrate’s conclusion

that there had been a McNabb-Mallory violation. The district

2Federal Rule of Criminal Procedure 5(a) requires that an arrested person be presented to a magistrate judge “without unnecessary delay.” The

McNabb-Mallory rule provides that “an arrested person’s confession is

inadmissible if given after an unreasonable delay in bringing him before

a judge.” Corley v. United States, 129 S. Ct. 1558, 1562 (2009). Congress

modified the remedy available for violations of Rule 5(a) in 18 U.S.C.

§ 3501(c) by providing that statements made within six hours after an

arrest cannot be excluded solely on the basis of a delay in presentment. 

12046 UNITED STATES v. VALENZUELA-ESPINOZA
court found that the delay in presenting Valenzuela-Espinoza

to a magistrate was reasonable because it was the result of the

agents’ “other legitimate law enforcement duties” to secure

the scene and obtain and execute the search warrant. The district court also took “judicial notice” of the fact that “it is its

policy that paperwork for initial appearances before the duty

magistrate is required . . . not later than 10:30 a.m. on the

morning of the appearance unless exceptional circumstances

are present.” Therefore, because Valenzuela-Espinoza was not

arrested until 11:15 a.m., the district court found he could not

have been processed in time for the 2:00 p.m. appearance. In

a later ruling, the district court also denied ValenzuelaEspinoza’s motion to suppress his statements on the basis that

his refusal to sign the Miranda waiver form was an invocation

of his Miranda rights. 

A bench trial was held on October 28 and 29, 2009. The

judge found Valenzuela-Espinoza guilty of conspiracy to possess marijuana with intent to distribute and possession of marijuana with intent to distribute. The judge found him not

guilty of the firearms charge. On February 8, 2010,

Valenzuela-Espinoza received concurrent sentences of thirtysix months on each count and a three-year term of supervised

release. His notice of appeal was timely filed on February 16,

2010. He has completed his prison sentence and has been

deported to Mexico, but he remains subject to the terms of his

supervised release. We have jurisdiction pursuant to 28

U.S.C. § 1291. 

On appeal, Valenzuela-Espinoza renews three arguments

made in his suppression motions: (1) that the attempted

“knock and talk” was an illegal seizure; (2) that his statements

made at the ICE office should be suppressed under the

McNabb-Mallory rule; and (3) that his refusal to sign the

Miranda waiver form was an invocation of his Miranda

rights. Additionally, he argues that the district court improperly rejected the magistrate’s credibility findings regarding

the search warrant affidavit without conducting a de novo eviUNITED STATES v. VALENZUELA-ESPINOZA 12047
dentiary hearing and that there was insufficient evidence to

convict him on the conspiracy charge. Because the McNabbMallory violation requires reversal of Valenzuela-Espinoza’s

conviction, we need not address his other arguments on

appeal.

III.

[1] Federal Rule of Criminal Procedure 5(a) provides that

“[a] person making an arrest within the United States must

take the defendant without unnecessary delay before a magistrate judge. . . .” The rule established in McNabb v. United

States, 318 U.S. 332 (1943), and Mallory v. United States,

354 U.S. 449 (1957), provides that “an arrested person’s confession is inadmissible if given after an unreasonable delay in

bringing him before a judge.” Corley v. United States, 129 S.

Ct. 1558, 1562 (2009). In response to the McNabb-Mallory

rule, Congress enacted 18 U.S.C. § 3501(c), which provides

a six-hour “safe harbor” period during which a confession

will not be deemed inadmissible solely because of delay in

presentment to a magistrate. United States v. Liera, 585 F.3d

1237, 1242 (9th Cir. 2009). 

The Supreme Court’s decision in Corley reaffirmed the

validity of the McNabb-Mallory rule. 129 S. Ct. at 1563. Noting that the McNabb-Mallory rule “has always mattered in

very practical ways and still does,” the Court explained:

Today presentment is the point at which the judge is

required to take several key steps to foreclose Government overreaching: informing the defendant of

the charges against him, his right to remain silent,

his right to counsel, the availability of bail, and any

right to a preliminary hearing; giving the defendant

a chance to consult with counsel; and deciding

between detention or release.

Id. at 1570. These important consequences of prompt presentment “count[ed] heavily” against the government’s position

12048 UNITED STATES v. VALENZUELA-ESPINOZA
that § 3501(c) nullified McNabb-Mallory entirely, for “if

there is no McNabb-Mallory there is no apparent remedy for

delay in presentment.” Id. The Court concluded that § 3501(c)

“modified McNabb-Mallory without supplanting it.” Id.

[2] The Court went on to clarify the procedure for applying

McNabb-Mallory in light of § 3501(c):

[A] district court . . . must find whether the defendant confessed within six hours of arrest (unless a

longer delay was reasonable considering the means

of transportation and the distance to be traveled to

the nearest available magistrate). If the confession

came within that period, it is admissible, subject to

the other Rules of Evidence, so long as it was made

voluntarily and the weight to be given it is left to the

jury. If the confession occurred before presentment

and beyond six hours, however, 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.

Id. at 1571 (internal quotation marks and alterations omitted);

see also United States v. Garcia-Hernandez, 569 F.3d 1100,

1105 (9th Cir. 2009) (describing Corley’s two-part test). “We

review a district court’s finding that a pre-arraignment delay

was reasonable for clear error.” Liera, 585 F.3d at 1243.

A.

[3] Here, there is no question that Valenzuela-Espinoza’s

incriminating statements were made before presentment and

beyond six hours. Valenzuela-Espinoza was arrested at 11:15

a.m., and his statements at the ICE station were made between

7:32 and 7:50 p.m., more than eight hours after his arrest. He

was not arraigned until 2:00 p.m. the following day. Following the two-part inquiry outlined in Corley, we first consider

whether “a longer delay was reasonable considering the

UNITED STATES v. VALENZUELA-ESPINOZA 12049
means of transportation and the distance to be traveled to the

nearest available magistrate.” Corley, 129 S. Ct. at 1571. 

[4] The nearest magistrate conducted a daily initial appearance calendar at 2:00 p.m. and was located only ten miles

from the house where Valenzuela-Espinoza was arrested.

Nine law enforcement officers were involved in the “knock

and talk” that led to the arrest. Common sense dictates that

under these circumstances, there was no reason for delay due

to “the means of transportation and the distance to be traveled” — indeed, after an evidentiary hearing, the magistrate

made a finding of fact that “any number of available agents”

could have taken Valenzuela-Espinoza to the 2:00 p.m.

arraignment calendar. 

When reviewing the magistrate’s recommendation, however, the district court took judicial notice that “it is [the

court’s] policy that paperwork for initial appearances before

the duty magistrate is required . . . not later than 10:30 a.m.

on the morning of the appearance unless exceptional circumstances are present.” The district court did not refer to a court

rule or written policy and did not explain what exceptional

circumstances might alter its policy or why those circumstances were not present in this case. The district court concluded that because Valenzuela-Espinoza was not arrested

until 11:15 a.m., its 10:30 a.m. paperwork policy prevented

him from being arraigned at the 2:00 p.m. calendar; in other

words, that the “nearest available magistrate,” Corley, 129 S.

Ct. at 1571, was at the arraignment calendar on the following

day, almost twenty-seven hours after the arrest.

[5] Valenzuela-Espinoza argues that the paperwork policy

was not a proper subject for judicial notice. Federal Rule of

Evidence 201 provides that a “judicially noticed fact must be

one not subject to reasonable dispute in that it is either (1)

generally known within the territorial jurisdiction of the trial

court or (2) capable of accurate and ready determination by

resort to sources whose accuracy cannot reasonably be ques12050 UNITED STATES v. VALENZUELA-ESPINOZA
tioned.” As Valenzuela-Espinoza points out, neither the district court nor the government cited any official court rules or

records that could make the paperwork requirement “capable

of accurate and ready determination.” See, e.g., Daniels-Hall

v. Nat’l Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010)

(taking judicial notice of official information posted on a governmental website, the accuracy of which was undisputed).

Furthermore, the fact that the magistrate who initially considered Valenzuela-Espinoza’s motion to suppress did not discuss the 10:30 a.m. paperwork-requirement deadline

undermines the notion that it was either a controlling,

universally-observed policy or one “generally known within

the territorial jurisdiction of the trial court.” See Fed. R. Evid.

201. 

After oral argument, the government, in a 28(j) letter,3 provided the court with a copy of a February 1998 internal memorandum from the Tucson magistrate judges to the U.S.

Attorney’s office, describing the 10:30 a.m. requirement and

requesting that the U.S. Attorney’s office communicate the

requirement to all law enforcement agencies.4 The government also provided a series of internal emails reiterating the

policy in 2010, as well as a 2002 case from this court recognizing the policy’s existence. See United States v. Gamez, 301

F.3d 1138 (9th Cir. 2002). 

[6] The district court did not mention any of these sources

when it took judicial notice of the paperwork requirement.

But even assuming without deciding that the policy was a

proper subject for judicial notice, we conclude that the 10:30

a.m. paperwork requirement, standing alone, does not estab3Fed. R. App. P. 28(j) provides that a party may advise the circuit clerk

by letter of pertinent and significant authorities that come to the party’s

attention after the party’s brief has been filed or after oral argument but

before decision. 

4

Ironically, the memo apparently was circulated because the agencies

were not uniformly observing the 10:30 a.m. deadline. 

UNITED STATES v. VALENZUELA-ESPINOZA 12051
lish that a delay beyond six hours was “reasonable considering the means of transportation and the distance to be traveled

to the nearest available magistrate.” Corley, 129 S. Ct. at

1571. 

Concluding otherwise would ignore Corley’s instruction

that delays must be reasonable. A hypothetical illustrates this

point. Imagine a defendant who is arrested on a federal warrant right outside the Tucson district court at 10:31 a.m. The

agents immediately bring the defendant before the magistrate

for arraignment. It has been a particularly quiet week for law

enforcement in Tucson, and no other arraignments are scheduled for that day. Because the court was not notified by 10:30

a.m., however, the agents are turned away, and the defendant

is detained for over twenty-seven hours before finally being

presented to a magistrate. This delay is not due to distance,

means of transportation, or the unavailability of the nearest

magistrate — instead, the delay is caused solely by the prenotification policy. Such a delay is, without question, unreasonable and unnecessary.

Moreover, if the availability of a magistrate is determined

solely by an arbitrary notification deadline, nothing prevents

a district court from moving that deadline so early in the day

that it renders the prompt presentment requirement meaningless. When Congress enacted § 3501(c), it determined that a

safe harbor period of six hours struck the appropriate balance

between convenience for law enforcement and concern about

extended presentment delays. See id. at 1569 (discussing the

legislative history leading to the six-hour safe harbor period).

If a district court requires all paperwork requirements to be

satisfied early in the morning, many defendants will face routine presentment delays of over twenty-four hours. Allowing

such a policy to dictate whether a delay was “reasonable”

would strip Criminal Rule 5(a)’s presentment requirement —

as well as McNabb-Mallory’s remedy for delays in presentment — of any significance. An internal policy agreed upon

by prosecutors and magistrate judges cannot trump the

12052 UNITED STATES v. VALENZUELA-ESPINOZA
requirements of a federal statute and the Federal Rules of

Criminal Procedure. Instead, whether a delay was reasonable

due to distance, the means of transportation, or the availability

of the nearest magistrate must be determined by the facts of

the particular case. See, e.g., United States v. Redlightning,

624 F.3d 1090, 1107-08 (9th Cir. 2010) (discussing whether

Redlightning could have been presented to a magistrate at the

start of the arraignment calendar or before the arraignment

calendar ended); Liera, 585 F.3d at 1240 (discussing the time

of the daily calendar call and location of the courthouse fifteen miles from where Liera was arrested); see also United

States v. Perez, 733 F.2d 1026, 1035 (2d Cir. 1984) (examining the latest time the magistrate was available). 

Our previous decision in Gamez does not compel a different result. In Gamez, a suspect was arrested at 7:30 a.m. at the

Nogales Border Patrol station over sixty miles from Tucson.

301 F.3d at 1143. Because he spoke only Spanish, the agents

could not question Gamez or determine what offense he

would be charged with until a Spanish-speaking agent arrived

later that morning. His arraignment was therefore delayed

until the following day. Id. Although the opinion mentioned

the Tucson court’s 10:30 a.m. notification policy, its holding

was based on the need to wait for a Spanish-speaking agent,

and it did not address whether the notification policy alone

was a reasonable cause for delay. Our subsequent cases citing

to Gamez in the McNabb-Mallory context describe it in this

manner; that is, as a delay in presentment of a defendant due

to the unavailability of Spanish-speaking federal agents. In

Garcia-Hernandez, we described Gamez as “holding that a

day-and-a-half delay was reasonable due to the unavailability

of Spanish-speaking federal agents.” 569 F.3d at 1106. Similarly, in Liera we described Gamez as “holding that a thirtyone hour pre-arraignment delay was necessary because the

defendant spoke only Spanish, and the first available Spanishspeaking agent did not arrive until [several] hours after defendant’s arrest.” 585 F.3d at 1243 (internal quotation marks

omitted). The court in Gamez did not specifically consider the

UNITED STATES v. VALENZUELA-ESPINOZA 12053
reasonableness of the 10:30 a.m. paperwork policy on its own,

and our subsequent cases have not interpreted Gamez as making any such determination. 

[7] Here, Valenzuela-Espinoza was arrested just ten miles

from the courthouse almost three hours before the scheduled

arraignment calendar. The delay here was not reasonable

“given the means of transportation and the distance to be traveled to the nearest available magistrate.” Corley, 129 S. Ct. at

1571. The 10:30 a.m. notification policy cannot by itself

create a reasonable delay. To hold otherwise would stand the

McNabb-Mallory rule on its head. 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, its

implementing statute, and rule. 

B.

We thus turn to the second part of our inquiry and consider

whether the delay “was unreasonable or unnecessary under

the McNabb-Mallory cases.” Id. Our cases have identified

three categories of reasonable delay apart from transportation,

distance, and the availability of a magistrate. First, delay for

humanitarian reasons is reasonable. See, e.g., Redlightning,

624 F.3d at 1109 (allowing defendant to retrieve his medication); United States v. Manuel, 706 F.2d 908, 914 (9th Cir.

1983) (allowing an extremely intoxicated man to sleep and

have a meal). Second, “delays due to the unavailability of

government personnel . . . necessary to completing the

arraignment process” are also reasonable. Liera, 585 F.3d at

1242 (quoting Garcia-Hernandez, 569 F.3d at 1106).

Finally, delays necessary to determine “whether [a suspect]

should be criminally charged” are also reasonable. GarciaHernandez, 569 F.3d at 1106; see also Gamez, 301 F.3d at

1143 (explaining that delay was reasonable where it “was

impossible to determine with what kind of offense Gamez

12054 UNITED STATES v. VALENZUELA-ESPINOZA
would be charged” prior to questioning by Spanish-speaking

agents).

The delay in presenting Valenzuela-Espinoza does not fall

into any of these categories and was not reasonable. First,

there is no suggestion that the delay was for humanitarian reasons.

[8] Second, there were plenty of law enforcement personnel available to complete Valenzuela-Espinoza’s arraignment.

The district court found that the agents involved with

Valenzuela-Espinoza’s arrest were unavailable to take him to

the arraignment because they were conducting “other legitimate law enforcement duties” such as securing the scene and

obtaining and executing the search warrant. This finding was

clearly erroneous. Agent Van Holsbeke testified that his time

had been occupied preparing the search warrant affidavit and

obtaining the warrant. One other ICE Agent testified that during that time, he and the other agents “basically sat on the

house until the warrant” to “make sure no one else would

come or go.” There is no basis in this testimony for the conclusion that all nine law enforcement officers involved in the

operation were too busy to take Valenzuela-Espinoza to the

magistrate. Rather, as the magistrate who conducted the evidentiary hearing observed, “any number of available agents”

could have transported Valenzuela-Espinoza. We conclude

that in this case, the fact that one officer out of nine was fulfilling his responsibility to obtain a search warrant did not

make the delay reasonable under McNabb-Mallory. 

Third, the record demonstrates that it was not necessary to

conduct any further investigation to determine whether

Valenzuela-Espinoza could be criminally charged. In its petition for rehearing, the government asserts that ValenzuelaEspinoza was arrested only for being in the United States illegally, and that until the search warrant was executed it could

not be determined if he would be charged with a criminal

drug offense or merely turned over to immigration authorities.

UNITED STATES v. VALENZUELA-ESPINOZA 12055
As a preliminary matter, the government did not raise this

argument in its initial briefing before this court, and its “failure to brief the issue results in waiver.” United States v.

Ewing, 638 F.3d 1226, 1230 (9th Cir. 2011). But in any event,

this argument is not supported by the record. The government

consistently asserted in its pleadings before the district court

that after Valenzuela-Espinoza exited the carport in “a cloud

of marijuana smoke” and told the officers that there was more

than ten pounds of marijuana inside the house, the government “had probable cause to detain the defendant for a criminal offense, possession of marijuana.” The government

maintained that when Agent Van Holsbeke smelled and saw

the marijuana smoke, he not only had probable cause to

believe that there was marijuana inside the house “but was

witnessing a crime being committed in his presence.” The district court accepted these arguments, expressly finding that

“[a]lthough Defendant Valenzuela-Espinoza was initially

arrested because of his presence in the United States illegally,

probable cause also existed regarding his involvement in

criminal activity.” There is simply nothing in the record to

support the claim that the officers needed to execute the

search warrant to determine whether they could charge

Valenzuela-Espinoza with possession of marijuana.

IV.

Rule 5(a) and McNabb-Mallory are important procedural

safeguards that protect against “the evil implications of secret

interrogation” and “insure that a defendant is brought ‘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.’ ” Liera, 585 F.3d at 1243

(quoting McNabb, 318 U.S. at 344, and Mallory, 354 U.S. at

454). As the Supreme Court reminded us just two years ago,

“Justice Frankfurter’s point in McNabb is as fresh as ever:

‘The history of liberty has largely been the history of observance of procedural safeguards.’ ” Corley, 129 S. Ct. at 1570

(quoting McNabb, 318 U.S. at 347).

12056 UNITED STATES v. VALENZUELA-ESPINOZA
[9] We hold that the district court erred by not suppressing

under the McNabb-Mallory rule the statements made by

Valenzuela-Espinoza at the ICE station. The agents here

unnecessarily delayed presenting Valenzuela-Espinoza to a

magistrate in violation of Rule 5(a) and McNabb-Mallory. His

statements at the ICE office amounted to a confession, and the

government does not argue that the admission of those statements was harmless error.5

 Valenzuela-Espinoza’s convictions are vacated and we remand for further proceedings.

VACATED and REMANDED.

5Even had the government argued that admission of the confession was

harmless, we would reject such an argument. “A confession is like no

other evidence. Indeed, the defendant’s own confession is probably the

most probative and damaging evidence that can be admitted against him

. . . .” Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (internal quotation

marks and citation omitted). Admission of a full confession, “ ‘in which

the defendant discloses the motive for and means of the crime[,]’ . . . will

seldom be harmless.” United States v. Williams, 435 F.3d 1148, 1162 (9th

Cir. 2006) (quoting Fulminante, 499 U.S. at 296). 

UNITED STATES v. VALENZUELA-ESPINOZA 12057