1 Senior Circuit Judge of the Ninth Circuit, sitting by

designation. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________________________

No. 91-2599

_________________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RAFAEL PEREZ-BUSTAMANTE,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________ (May 29, 1992)

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

BARKSDALE, Circuit Judge:

The single issue before us is whether Ra fael PerezBustamante's confession, give n on Monday morning, the day before

New Year's and approximately 60 h ours after his Friday night

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

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

We AFFIRM

.2 A sensor is a device planted in the grou nd that alerts to

pressure vibrations in the area around it.

3 An agent drew his pistol and shouted (in Sp anish)

"Immigration. Drop the pistol." After this command was repeated

several times, Perez obeyed.

4 Perez does not challenge this confession.

- 2 - I.

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

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

the Rio Grande Riv er, sixteen miles east of the International

Bridge at Brownsville, Te xas. On arriving, they observed Perez

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

forward, Perez drew a pistol. 3

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

pursued two other individuals. From the trail leading to the

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

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

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

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

the arrest site).

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

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

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

them (written) and was interv iewed and processed for Immigration

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

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

illegal alien, Perez executed several forms which explained the5 Those forms were: I-213 (Record of Deportable Alien); I-214

(Rights Form); I-221 (Form of Arrest for Illegal Entry Form) and I274 (Voluntary Departure or Hearing Form).

6 As discussed infra

, it was not until after his interview with

Perez that Tamayo learned that a magistrate was not available on

December 31. The following colloquy occurred at the suppression

hearing:

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

statement taken?

[TAMAYO]: It was approximately 10:00 to 11:00

[a.m.] ... on Monday, December 31st.

* * *

THE COURT: In ordinary course, ... when do you

take persons before the Magistrate? At what hour?

[TAMAYO]: Normally between 1:30 and 3:00 is

when they are arraigned....

- 3 - reason for his arrest and his rights in deportat ion proceedings. 5

Because the Border Patrol was not authorized to process Perez

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

tha t Perez was in custody. After midnight, Perez was taken by

Border Patrol Agents to the Port Isabel Service Processing Center

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

Magistrates were not available for initial appearances during

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

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

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

was taken to the Brownsville DEA office for processing on drug

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

a magistrate that day; normally, defendants are arraigned between

1:30 and 3:00 p.m. 6THE COURT: So if the Magistrate had been

available [on Monday], the arraignment would, in

ordinary course, have taken place that afternoon?

[TAMAYO]: Yes, sir ....

* * *

[GOVERNMENT:] Did you take the defendant in front

of a Magistrate?

[TAMAYO:] Well, I had told the defendant that

he would appear before the Magist rate that day.

Since one was not available, he would have to wait

two days , which would have been the Wednesday

appearance.

[GOVERNMENT:] Did you tell him before or after he

made the statement?

[TAMAYO:]

... [I]t was after the statements,

because it was after then that I found out that no

Magistrate was available.

[GOVERNMENT:] Okay. Now, did you make any

promises or threats to the defendant in order to

obtain these statements?

[TAMAYO:] None at all.

[GOVERNMENT:] Did you take the defendant in front

of the Magistrate at the earliest possible time?

[TAMAYO:] Yes, it was, which was Wednesday on

January 2nd, 1991.

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

informed him that he was being charged with possession of marijuana

and carrying a weapon during a narcotics transaction. Perez then

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

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

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

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

was not in response to a question; as indicated, it was offered7 Tamayo testified at the suppression hearing as follows:

[TAMAYO:] I don't recall that I asked him a

question. It was after I told him what he was

being charged with that he ex plained to me about

what the purpose of the firearm was. He was very

concerned about that.

[DEFENSE COUNSEL:] You asked him no questions?

[TAMAYO:] When I told him what he was charged

with, that's when he just started -- we carried on

a conversation. There [were] no specific

questions. And he was concerned about the firearm.

8 He was indicted for (1) conspiracy to import more than 50

kilograms of marijuana, in violation of 21 U.S.C. §§ 963, 952(a),

and 960(b)(3); (2) importing approximately 167 pounds of marijuana,

in violation of 21 U.S.C. §§ 952(a), 960(b)(3), and 18 U.S.C. § 2;

(3) conspiracy to possess with intent to distribute more than 50

kilograms of marijuana, in violation of 21 U.S.C. §§ 846,

841(a)(1), and 841(b)(1)(C); (4) possessing with intent to

distribute approximately 167 pounds of marijuana, in violation of

21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2; (5)

possession of a firearm during and in relation to a drug

trafficking offense, in violation of 18 U.S.C. § 924(c); and (6)

possessing a firearm as an illegal alien, in violation of 18 U.S.C.

922(g)(5).

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

included fifteen minutes of t aking photographs and fingerprints,

lasted approximately thirty minutes. After the interview, Tamayo

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

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

who remained in custody and did not appear before a magistrate

until two days later.

Perez was ind icted on six drug and weapons counts. 8 Relying

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

, he moved

unsuccessfully to suppress his December 31 confession, contending

that it was involuntary, solely because of the delay in his9 Perez concedes that the subsequent period between the Monday

confession and Wednesday appearance is not relevant. And, because

we hold that the confession was admissible, we need not reach the

issue of harmless error.

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

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

alia , to 101 months' imprisonment.

II.

Perez confessed approximately 60 hours after he was arrested

and two days prior to appearing before a magistrate. Arrested

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

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

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

accordingly, his confession was involuntary and, therefore,

inadmissible. 9

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

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

shall take the arrested person without unnecessary delay before the

nearest available federal magistrate or, in the event that a

federal magistrate is not reasonably available, before a state or

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

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

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

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

brought by the United States

... a confession

... shall be

admissible in evidence if it is voluntarily g iven." 18 U.S.C. §10 Although Perez did not rely on Rule 5(a) in district court, he

did rely, as noted, upon § 3501.

- 7 - 3501(a). 10 Section 3501 requires the trial judge to determine

voluntariness in light of

all the circumstances surrounding the giving of the

confession, including (1) the time elapsing between

arrest and arraignment of the defendant making the

confession, if it was made after arrest and before

arraignment

, (2) whether such defendant knew the

nature of the offense with which he was charged or

of which he was suspected at the time of making the

confession, ( 3) whether or not such defendant was

advised or knew that he was not required to make

any statement and that any such statement could be

used against him, (4) whether or not such defendant

had been advised prior to questioning of his right

to th e assistance of counsel; and (5) whether or

not suc h defendant was without the assistance of

counsel when questioned and when giving such

confession.

The presenc e or absence of any of the abovementioned factors to be taken into consideration by

the judge need not be conclusive on the issue of

voluntariness.

18 U.S.C. § 3501(b) (emphasis added).

After the testimony at the suppression hearing, the following

exchange occurred:

THE COURT: .... Now, are you attacking

voluntariness? I don't have any evidence to the

contrary.

* * *

[DEFENSE COUNSEL]: Your Honor, it is not my

obl igation to attack anything .... What I am

saying is that the Government has not fulfilled

[its] burden in proving that Rafael PerezBustamante gave his confession knowingly and

voluntarily....

THE COURT: ... I don't have any evidence other

than it was voluntary and I so find. Aren't you

also addressing the fact that there was a delay?- 8 - [DEFENSE COUNSEL]: [T]he delay under [§] 3501(b)

is one of the considerations that the trial judge

in determining the issue of voluntariness shall

take into consideration.... [T]he delay

contributed to the involuntariness of the

confession ....

[THE COURT]: I don't agree.... I will tell you

where I might have to agree. Had there been some

statements made after Monday morning [December 31],

I think that would have been an undue delay. But

up till Mon d ay morning, there was nothing that

doesn't happen in ordinary course. In other words,

when people are arrested Friday late, that they are simply taken before a Magistrate Monday during the

course of the day.

And what statements he made to Mr. Tamayo were made prior to the time that he ordinarily would

have been taken to the Magistrate anyway. I don't

t h ink that departure is sufficient to where it

would totally affect the voluntariness of the

making of the statement.

I would call to your attention that the

evidence before me

.. . indicates, and there is

nothing to the contrary, tha t the warning was not

given once, but it was given three times before he

made a statement to Mr. Tamayo. I don't think that

the delay is such that it caused or created in the

defendant a setting by which he did not knowingly

and willfully make a statement.

Section 3501 further provides:

[A] confession

... shall not be inadmissible

solely because of delay in bringing a person before

a magistrate

... if such confession is found by the

t rial 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 o r given

by such person within six hours immediately

following his arrest ... P rovided

, That the time

limitation

... shall not apply in any case in which

the delay in bringing such p erson before such

magistrate

... beyond such six-hour period is found

by the trial judge to be reasonable considering the

means of transpor t ation and the distance to be

traveled to the nearest available such magistrate

or other officer.- 9 -

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

inadmissible all confessions obtained mo re than six hours after

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

transportation and the distance to be traveled to the nearest

available

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

construction in United States v. Hathorn

, 451 F.2d 1337, 1341 (5th

Cir. 1971):

While Section 3501(c) can be construed to mean that

the only confessi ons obtained more than six hours

after arrest that can be admitted are those that

were elicited during the time necessary for travel

to the ma gistrate, we agree with the 9th Circuit

[ United States v. Halbert , 436 F.2d 1226 (9th Cir.

1970)] that C ongress did not intend to legislate

any such arbitrary edic t. We believe the correct

interpretation to be that Congress established six

hours as a minimum period which would pass muster.

If, therefore, a l onger delay occurs, it merely

constitutes another factor to be considered by the

trial judge in determining voluntariness.

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

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

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

there was no evidence that the d elay was for the purpose of

extracting a co nfession or that the interrogation was lengthy,

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

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

.

"Once a defendant has been tried and convicte d, delay in

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

conviction unless the defendant can show that he was prejudiced by

the delay." I d

. at 120 (quoting United States v. Causey

, 835 F.2d

1527, 1529 (5th Cir. 1988)). "[D]elay is `simply one factor which11 McLaughlin was decided approximately two and one-half months

after the suppression hearing in this case.

- 10 - must be considered along with other factors in determ ining

voluntariness.'" I d

. (quoting United St ates v. Gorel , 622 F.2d

100, 104 (5th Cir. 1979), cert. denied

, 445 U.S. 943 (1980)).

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

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

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

causal connection between the delay and the confession, and the

confession wa s otherwise voluntarily given, we hold that the

defendant has not shown prejudice by the delay." Id

.

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

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

(1991). He maintains that, under M cLaughlin

, the 60 hours between

his arrest and confession is "not tolerab le". 1 1 "In G erstein v.

Pugh

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

Amendment requires a prompt judicial determinatio n of probable

cause as a prerequisite to an extended pretrial detention following

a warrantless arrest." M cLaughlin

, 111 S. Ct. at 1665. In

McLaughlin

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

prompt under Gerstein ." Id.

Where an arrested individual does not receive

a probable cause determination within 48 hours

.... the arrested individual does not bear the burden of

proving an unreasonable delay. Rather, the burden

shifts to the government to demonstrate the

existence of a bona fide emergency or other

extraordinary circumstance. The fact that in a

particular case it may take longer than 48 hours to

consolidate pretrial [probable cause and

arraignment] proceedings does not qualify as an12 Perez requested, and received, an instruction pertaining to

the statement's voluntariness.

- 11 - extraordinary circumstance. Nor for that matter,

do intervening weekends.

Id . at 1670.

Perez asserts that the 48-hour requirement applies here.

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

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

incorrect or unfounded suspicion may unjustly `imperil [a]

su spect's job, interrupt his source of income, and impair his

family relationships.'" I d

. at 1668 (quoting Gerstein

, 420 U.S. at

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

that its "purpose in G erstein was to make clear that the Fourth

Amendment requires every State to provide prompt determinations of

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

this concern.

On the other hand, § 3501 focuses on voluntariness and

addresses the concern that a federal conviction be based on

reliable evidence. S ee Crane v. Kentucky

, 476 U.S. 683, 687-92

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

requiring the district court to consider carefully t he issue of

unreasonable delay and by placing voluntariness before the trier of

fact. 12

The delay refle cted in this case is cause for considerable

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

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

the confession rendered it inadmissible. Perez was arrested late- 12 -

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

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

forms which explained the reason for his detention on immigration

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

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

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

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

Magistrate was available until Wednesday morning)." Furthermore,

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

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

about thirty minutes, fifteen of which were devoted to

fingerprinting and photographing. Perez had been read Miranda

warnings three times, once immedi ately before the interview.

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

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

In fact, as discussed, Pe rez volunteered the information after

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

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

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

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

Our holding should not be understood to condone the almost

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

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

operating procedure; far from it.- 13 - III.

Accordingly, the judgment is

AFFIRMED

.