### REVI SED July 15, 2014

I N THE UNI TED STATES COURT OF APPEALS

FOR THE FI F TH CI RCUI T

No. 12-40141

UNITED STATES OF AMERICA, 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 D e Jesus Boche-Perez (“Boche-Perez”) appeals from a c riminal conviction pursuant to a conditional plea agreement in which he pleaded guilty to knowing p ossession of child pornography, but reserved the right to appeal the denial of a motion t o suppress a series o f confessions given to b order patrol agents. For the following r easons, we AFFIRM the district court’s r uling on the motion to suppress. U n it e d S ta t e s C o u rt o f A p p e a l s F ifth C i rc u i t 

### F I L E D J une 17, 2014 Ly le W . Cay ce Clerk Case: 12-40141 Document: 00512699543 Page: 1 Date Filed: 07/15/2014No. 12-40141 FACTS AND PROCEEDINGS Boche-Perez, a lawful permanent resident, was apprehended while entering the United States at the Laredo, T e xas, port of entry on Wednesday, October 27, 2010. C ustoms and B order Patrol (“CBP”) agents initially d etained B o che-Perez f

or inspection at 9 a.m. after an ID check r evealed that he was flagged as a suspected narcotics s muggler. Because Boche-Perez had a c riminal history, border agents followed procedure and took Boche-Perez to the hard secondary inspection r oom, where h e sat handcuffed to a chair for officer safety. After questioning a nd holding Boche-Perez in c u stody, C BP agents determined that Boche-Perez was eligib l e t o e nter the country. A final search of BochePerez’s luggage at approximately 12:40 p . m., t h o u gh , turned up DVDs containing child pornography. B oche-Perez does not co ntend 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 a n d contacted Immigration and Customs Enforcemen t (“ICE”). An ICE agent arrived at the port at about 1 p.m. At approximately 1:50 p.m., the I CE agent read Boche-Perez his Miranda warnings and began i nterviewing him regarding the DVDs. Boche-Perez waived h is Miranda rights and deni e d k n o w i n g th at th e D VD s c o nt ai n e d child pornography. The interview ended shortly before 3 p . m . , a t which point the ICE agent contacted an Assistant United States Attorney, who agreed to prosecute BochePerez 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 j ail. At that time, however, Boche-Pe r e z still had to be processed for admittance a nd paroled into the United States. Accordingly, at approximately 4 p.m., a CBP agent interviewed Boche-Perez to process him into the United St a t e s . T he CBP agent g ave Boche-Perez his Miranda warnings a gain, and

2 Case: 12-40141 Document: 00512699543 Page: 2 Date Filed: 07/15/2014No. 12-40141

after he waived his rights, he confessed a t approxi m a t e l y 4:15 p.m. In his confession, Boche-Perez specifically admitted that he knew t h e DVDs c ontained child p o rnography even before they were discovered i n his luggage at the border. After the 4 : 1 5 p . m . o ral 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. C BP i n f

ormed ICE that Boche-Perez had confessed and was ready to be transported to the Webb County Sheriff’s office. Before transporting Boche-Perez t o jail, h owever, the ICE agent w ho had a rrested Boche-Perez questioned him again. ICE’s second round of questioning elicited statements from Boche-Per e z r e g ar di n g h i s p o s s e s s ion of additional child pornography at his h o me in Arkansas. The ICE agent gave this information to law enforceme n t officers in Arkansas and asked them t o obtain a s e a r ch warrant f or BochePerez’s residence. That search subsequently yielded evidence o f further child pornography offenses. Boche-Perez was booked into the Webb County jail at 11:40 p.m. The ICE agent admitted at the s uppression hearing that the fede r a l b u i l d i ng was less than 15 minutes from the b ridge where B oche-Perez was arrested, and that the Government had agreed t o p rosecute Boche-Perez by 3:22 p.m. on October 27th. The ICE agent f

urther admitted that a t 3:22 p.m. he had the information needed to p r osecute, a nd that the criminal complaint would be only two-to-three pages. Nonetheless, Boche-Perez spent tw o n i gh t s i n j ail, 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
req u ires the paperwork for an initial appearance t o be submitted f or approval by 4 p.m. on t he d ay b efore presentment to the m agistrate, and the ICE Agent

3 Case: 12-40141 Document: 00512699543 Page: 3 Date Filed: 07/15/2014No. 12-40141

d i d n o t b e l ieve he had time to meet the 4 p.m. deadline after only getting t he agreement to prosecute at 3:22 p.m. In ruling on Boche-Perez’s motion to supp r e s s , th e district court found that he was not presented to the mag i strate judge within six hours, b ut that his statements w ere voluntary and not a consequence of the delay. Finding that the delay was not c r e a t e d for t he purpose of e xtracting a confession, but rather resulted from delays arising out of administrative processing and the n e e d for coordination across multiple law enforcement agencies, the district court denied Boche-Perez’s motion t o s uppress his statements on the basis o f a delay in presentment. The district court a l s o determined that his confessions were voluntary, and that no Mirandaviolation had occurred. After the motion to suppress was denied, B oche-Perez entered a conditional guilty p lea to knowingly possessing c h il d pornography. Boche-Perez

res e r v e d t h e right to appeal the denial of the m otion to suppress. The district court sentenced him to 63 months in prison and to 5 years o f s u pervised release. Boche-Perez timely appealed.

STANDARD OF REVIEW In reviewing a m otion to suppress, this court reviews the district court’s l e g a l determinations de novo and its factual findings for clear error. United States v. Gonzalez , 121 F.3d 928, 938 (5th Cir. 1997). We look a t t h e e v idence in the light m o s t f avorable to the prevailing party, United States v. Lopez-Moreno , 4 20 F.3d 4 20, 4 29 (5th Cir. 2005), which here is the Government. A district c o urt’s ruling on a motion to suppress may be affirmed o n any basis supported by the record. United States v. Ibarra-Sanchez , 199 F.3d 753, 758 (5th Cir. 1999).

4 Case: 12-40141 Document: 00512699543 Page: 4 Date Filed: 07/15/2014No. 12-40141 DISCUSSION Boche-Perez c hallenges (1) t h e district court’s d enial of his motion to suppress h i s t h r ee confessions on the basis of an unreasonable delay in presentment, (2) the district court’s denial of h is motion to supp r e s s h i s three

c o n f e s sions o n the grounds that they w ere involuntary, and (3) t he district

co u r t ’ s d e n i a l of his motion t o s u ppress his f inal confession on t he b asis of a claimed Miranda violation. Boche-Perez’s arguments do not succeed.

1) Delay in Presentment Rule 5 of the F ederal Rules of Criminal Procedure requires that “ [a] per s o n making an arrest within the United States must t a ke the defendant without
unnecessary delay before a magistrate judge.” Fed. R. Crim. P. 5 (a)(l)(A). Rule 5 c odifies the common-law rule of “prompt p resentment,” w hich 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 , 3 18 U .S. 322 (1 9 4 3 ) a n d M allory v. United States , 3 54 U.S. 449 (1957), t h e S u p r e m e C o u r t e s t a b l i s h e d a r e m e d y for violat i o n s o f t h e pro m p t

- p r e s e nt m e nt r e qu ir e m e nt : s u p p r e s s i o n o f a ny c o nf e s s i o n ob t ai n ed during a period of unreasonable delay. Corley , 556 U.S. at 309. In 1968, C ongress 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 s o lely due t o a delay in presentment i f the c onfession was made v oluntarily

. 1 See Corley , 556 U.S. at

1 18 U

. S. C. § 3501( c) p rovid es that:
In any crim inal p ros e c u t ion by the U nited States or by the D is trict of Colum bia, a conf es s ion mad e or gi v e n b y a p e r s on w ho is a d ef end ant therein, w hile such p ers on w as und er arres t or other detention in the cus tod y of an y law

- enf orcem ent of

f icer or law

- enf orcem ent agency, s hall not be inad m is s ible s olely becaus e of delay in bringing
s uch p ers on bef

ore a magis trate jud ge or other of f icer em p ow ered to com m it p ers ons 5 Case: 12-40141 Document: 00512699543 Page: 5 Date Filed: 07/15/2014No. 12-40141

322. Section 3501(c) a lso permits for an extension o f the s ix-hour safe harbor in

a ny c ase in which the delay in bringing such a person b efore a magistrate i s found by the trial judge to be r easonable considering the means of transportation and the distance to be traveled to the nearest magistrate. Confessions p rovided outside § 3501(c)’s safe-harbor, however, remain subject to the McNabb-Mallory exclu s i o n a r y r ule. Id .; see a lso United States v . Cantu-Ramirez , 669 F.3d 619, 625 (5th Cir. 2012). Because t his circuit has yet to address the viability of its pre- Corley case law in cases involving presentment delays that fall outside of the s afe 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 d ecision “absent an i n tervening change in the law, such as by a statutory amendment, or the Supreme Court or by our en b a n c court.” Technical Automation Servs. Corp v. Liberty Surplus Ins. C orp. , 6 7 3 F.3d 399, 405 ( 5th Cir. 2012) (internal q u o t ation marks omitted). “[F]or a Supreme Court d ecision to c hange our [c]ircuit’s law, it must be m o r e than merely i l l u minating w ith respect to the case before the court and must unequivocally overrule prior precedent.” Id. at 405 (internal q u o t ation marks and alterations omitted). Our inquiry is w hether C orle y u n e quivo c al ly overruled our existing precedent concerning McNabb-Mallory . We hold that it did.

charged w ith of

f ens es agains t t h e l a w s of the U nited States or of the D is trict of Colum bia if s uch conf

es s ion is f

ound by the trial jud ge to have been m ad e voluntarily and if the weight to be given the conf es s ion is lef

t to the jury and if s uch conf es s ion w as m ad e or given by s uch p ers on w ithin six h o u r s i m m ed iately follow ing his arres t or other d etention: Prov i ded , [ t] hat the tim e lim itation contained in this s ubs ection s hall not ap ply in any cas e in w hich the d elay in bringing s uch p ers on bef ore s uch m agis trate jud ge or other of

f icer beyond s uch s ix- hour p eriod is f o u n d by the trial jud ge to be reas onable cons id ering the m eans of trans p ortation and the d is tance to be traveled to the neares t available s uch m agis trate jud ge or other of ficer. 6 Case: 12-40141 Document: 00512699543 Page: 6 Date Filed: 07/15/2014No. 12-40141

Before Corley we t reated 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 S tates v . Perez-Bustamante , 963 F.2d 48, 52-53 (5th Cir. 1992); United States v. Bustamante-Saenz , 894 F.2d 114, 120 (5th Cir. 1 990). D e l a y s longer than six hours “merely c o nstitute[d] another factor to b e c onsidered by the trial judge i n determining voluntariness.” United S tates v. Hathorn , 451 F .2d 1337, 1 341 (5th Cir. 1971). Corley unequivocally held that our prior approach was in error. Corley makes c lear that even voluntary confessions should b e suppressed i f t h ey 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 d elaying t hat long was unreasonable

or unnec e s sary under t he McNabb-Mallory cases , and if it was, the confession is t o be suppressed.” 556 U.S. at 322. Accordingly, we take this opportunity to confirm that, to the e xtent o u r p r e vious cases have indicated that a gr eater-thans ix - h o ur d e l ay is o nly a component of a broader voluntariness examination, th o s e

cases were overruled by the Supreme Court in Corley

. Instead, w hen presented with a delay outside of the safe harbor, a district court must apply the McNabbMallory doctrine to determine whether t he delay in bringing a suspect before a magistrate was reasonable.

7 Case: 12-40141 Document: 00512699543 Page: 7 Date Filed: 07/15/2014No. 12-40141

B) Standard for Determining Violations of McNabb-Mallory 2 Mallory provides the following guidance for d etermining whether a confession happened after a period of unnecessary delay: The police may not a rrest upon mere suspicion b ut only o n ‘probable cause.’ The next step in the p roceeding is to arraign the arrested person before a judicial o fficer as quickly as p ossible so that he m ay b e advised of his r ights and so that the issue of probable cause may be promptly determined. The arrested person may, of course, be ‘booked’ by the police. But h e is not to b e t aken to police h ead q u a r t e r s i n o r der to carry out a process of inquiry that lends itself, even if not s o desig n e d , to eliciting damaging statements to support the arrest and ultimately his guilt. The duty e njoined upon a rresting officers t o arraign ‘without unneces s a r y delay’ indicates that t he command does not call for mechanical or aut o m a t i c obedience. Circumstances may justify a brief delay between arrest and arraignment, as for ins t a n c e , where t he story volunteered by the accused is susceptible of quick verifi c a tion through third parties. But the d elay must not be of a n ature to give opportunity for the extraction of a confession.
354 U.S. at 454-55. A s noted by the Supreme Court, the d octrine proscribes only
unnecessary delays, and not d elay itself. Accordingly, when applying McNabbMallory, a court c annot s imply “watch[] the clock,” and treat the doctrine as “a carpenter’s measuring stick to be used b y m erely laying it alongside t he material to be evaluated.” Muschette v. United States , 3 22 F.2d 989, 991 (D.C. C ir. 1963), vacated on other grounds , 378 U.S. 569 (1964). A six-hour delay in presentment should not be treated as a s ort of talismanic formula t hat renders a ll confessions made a f t e r the delay inadmissable: “[a] lapse of hours between arrest and

2 We highlight f

or the s ak e of clarity that the G overnm ent d id not rais e any argum ent that Boche- Perez’s w ai v er of his M i ra nda rights als o cons tituted a w aiver of his M cN a bbM a l lory rights

. Becaus e any delays that occurred w ere reas onable and/ or harm les s , w e d o not reach the ques tion of w hether such a rule exis ts in this circuit, or the ef f ect, if any, Corl ey had
on s uc h a r u l e . W e d o note, how ever, that s om e courts have com e to the conclus ion that a M i ra nda w aiver als o cons titutes a w aiver of rights und er M cN a bb- M a llory . See, e. g
. , Corl ey , 556 U

. S. at 328- 29 (Alito, J. , d is s enting) ( citing cas es ) ; Uni ted S t a t es v . G uthri e , 265 F. Ap p ’x 478, 480- 81 (9th Cir. 2008) ; see a lso Brow n v . Uni ted Sta tes , 979 A. 2d 630, 636- 37 ( D

. C. 2009) ( cons id ering ef

f ect of Corl ey on M

cN a bb- M a l loryw aivers )

. 8 Case: 12-40141 Document: 00512699543 Page: 8 Date Filed: 07/15/2014No. 12-40141

arraignment, standing alone, does n ot require t he exclusion of a s tatement 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 m ere fact that a confession is made while [the accused] is in custody of the p o l i ce does not render it inadmissable,” M c N a b b , 3 18 U.S. a t 346, because “it is the n eed for the delay rather than i t s length that is controlling.” 1 Charles Alan Wright & Andrew D. Leipold, Federal Practice and Procedure: Criminal§ 73, at 179 (4th ed. 2008). Ac c o r di n gly , a M

cNabb-Mallory challenge requires a district c o u rt t o m ak e two determinations: Initially, the court must determine the length of t he d e lay. T he McNabbMallory clock s tarts to run from when the obligation to t ake the defendant before the federal magistrate ari s e s , s e e U n i t e d States v. Alvarez-Sanchez , 511 U .S. 350, 359 (1996), t o the point at which t he 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 ( 5 th Cir. 1971). 3 McNabb-Mallory concerns itself with “the time of confes s i o n , not the time of f irst appearance.” 1 Wright & Leipold § 73, at 177. If that period is shorter than six-hours , o r alternatively, any extension of the safe harbor “considering t he means of transportation and t h e distance to be traveled to the n earest available s u ch magistrate j ud g e or other officer,” 18 U.S.C. § 3501(c), then the McNabb-Mallory inquiry is at an end.

3 See a lso U

ni ted Sta t es v . Elki ns , 774 F. 2d 530, 534- 35 ( 1s t Cir. 1985) ; U ni ted Sta tes v . Lev i ton , 193 F. 2d 848, 853 ( 2d Cir. 1951) ; G ov ’t of V

. I. v . G erea u , 502 F. 2d 914, 924 ( 3d Cir. 1974) , rev ’d on other grounds , Corl ey , 556 U

. S. at 312- 13; U ni ted Sta tes v. Seohnl ei n , 423 F

. 2d 1051, 1053 ( 4th Cir. 1970) ; U ni ted Sta tes v . Long , 323 F

. 2 d 4 6 8 , 471 (6th Cir. 1963) ; U ni ted Sta tes v . D a v i s , 532 F. 2d 22, 25 ( 7th Cir. 1976) ; Bright v. U ni ted Sta tes , 274 F. 2d 696, 697 ( 8th Cir. 1960) ; U

ni ted Sta tes v . H

a l bert , 436 F. 2d 1226, 1237 ( 9th Cir. 1970) , ov errul i ng on other grounds recogni zed by U ni ted Sta tes v . M

endoz a , 16 F. Ap p ’x 770, 772 ( 9th C i r . 2001) ; Cha p m a n v . U

ni ted Sta tes , 397 F. 2d 24, 26 ( 10th Cir. 1968) ; M athi es v . U

ni ted Sta tes , 374 F

. 2d 312, 315 ( D. C. Cir. 1967) ; Wayne R. LeFave et al. , Cri m ina l Procedure § 6. 3 (Wes tlaw 3d ed

. 2012)

. 9 Case: 12-40141 Document: 00512699543 Page: 9 Date Filed: 07/15/2014No. 12-40141

But if the length of the delay is determined t o fall outside of the § 3501(c) safe harbor, then the court needs to move on to the second step of the analysis

a n d e xamine whether the causes of the delay were justifiable under the McNab b

Mallory cases. The defendant has the burden of demonstrating a M c N a bbMallory violation. See, e.g. , Brown , 459 F.2d at 324; Joseph v. United S tates , 239 F.2d 524, 527 (5th Cir. 1957); White v. United S tates , 200 F.2d 509, 512 (5th Cir. 1952). 4 McNabb-Mallory case law rejects delays when those delays have either (1)

a non-existent o r (2) an unacceptable justification. A non-existent explanation ( i

. e. , delay for delay’s sake) is unacceptable under McNabb-Mallory becaus e a delay for delay’s s ake is, b y definition, unne c essary 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 S tates v . Bing-Nam , 788 F.2d 4 (2d Cir. 1986). Similarly, a d e l a y f o r t h e purpose o f interrogation “is the epitome of [an] unnecessary d elay.” C orley , 556 U.S. at 308; see also Rogers v. United States , 330 F.2d 535, 5 38 (5th Cir. 1964). But beyond either unexplained delays or p u r p o s e f

u l d e l ay s for criminal interrogations, c ourts have been “careful not to o verextend McNabb-Mallory ’s prophylactic rule in c ases where there was

a reasonable d elay unrelated to any prolonged i nterrogation of the a rrestee.” United States v. Garcia-Hernandez , 569 F.3d 1100, 1106 (9th Cir. 2009). As a result, the McNabb-Mallory doctrine tolerat e s d elays related to legitimate law e n forcement procedures, s uch as the administrative booking of

4 See a lso U

ni t ed Sta tes v . V

a n P oyck , 77 F .3d 285, 288 ( 9th Cir. 1996) ; M i l l er v . U ni ted Sta tes , 396 F. 2d 492, 496 ( 8th Cir. 1968) ; Ti l lotson v . U ni ted Sta tes , 231 F. 2d 736, 738 ( D

. C

. Cir. 1956) ; U

ni ted Sta t es v . L e v i t o n , 1 93 F. 2d 848, 854 ( 2d Cir. 1951)

. We d o not ad d res s w hether there is a burd en- s hif ting f ram ew ork und er M

cN a bb- M al lory for d elays in p res entm ent greater than a certain num ber of hours becaus e Boche- P erez d oes not rais e, and theref ore w aived , any s uch argum ent. Cf

. Cnty. of Ri versi de v . M cLa ughl i n , 500 U

. S. 44, 56- 57 ( 1991) ( a r t i c u lating burd en- s hif ting f ram ew ork w hen the d ef end ant is not given a p robable caus e hearing w ithin 48 hours )

. 10 Case: 12-40141 Document: 00512699543 Page: 10 Date Filed: 07/15/2014No. 12-40141

the arrestee; c oo r d i nating with multiple law enforcement a gencies or with the U.S. attorney’s office; o r v erifying alibis. See, e.g. , Mallor y , 3 5 4 U.S. at 454; D a v i s , 532 F.2d at 25-26; U nited S tates v. Collins , 462 F.2d 7 92, 795 (2d C ir

. 1972); Feguer v. United States , 302 F

. 2 d 214, 251 (8th Cir. 1962); Haines v. United States , 1 88 F.2d 5 46, 554-55 (9th Cir. 1951); c f. United States v. CorralMartinez , 592 F.2d 2 6 3 , 2 68 (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

. 2 d 9 0 8 , 914 ( 9th Cir. 1983); United States v. Aman , 624 F.2d 911, 913 (9th Cir. 1 9 8 0 ) ; U n i ted States v. Isom , 588 F.2d 858, 862 (2d Cir. 1978). Delays a rising from a shortage of governmental personnel necessary for the initial appearance and transpor t a t ion thereto ( such a s attorneys, law enforcement, and translators) also remain acceptable. See, e. g
. , GarciaHernandez , 569 F.3d at 1 106. F o r the purposes of determining whether there is a shortage of governmental personnel, McNabb-Mallory does not require law enforcement officers t o drop everything and rush to the magistrate w hen doing

so would imperil public safety. See, e.g. , Carter , 484 F. App’x at 4 57-58; United States v. Hensley , 374 F .2d 341, 349 ( 6th Cir. 1 967). Moreover, under MalloryMcNabb , the p olice a re not entirely “forbidden

. . . t o investigate c rime.” 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 w hether the crime o ccurred; search and secure a premises; and secure, confiscate, o r d estroy contraband b efore taking a n a r r e stee to a magistrate. See, e.g. , United States v. McDaniel , 441 F.2d 1160, 1161 (4th Cir. 1971); W illiams v. United States , 419 F.2d 7 40, 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. 1 966); United St a tes v. Price , 345 F .2d 256, 2 61-62 (2d Cir. 1965); Rogers , 11 Case: 12-40141 Document: 00512699543 Page: 11 Date Filed: 07/15/2014No. 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 t o cooperate before a period of unnecessary delay, McNabb-Mallory permits officers to translate oral confessions i nto written confessions, and does n ot require officers to prematurely terminate an interview. See, e.g. , U n ited S t ates 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 8 29, 833 (D.C. Cir. 1966); Vita , 294 F.2d at 532; Metoyer v . United States , 2 50 F.2d 30, 33 (D.C. C ir. 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 b usy d ocket; a closed court; or other factors, such as dist a nce and weather, that make transportation i mpractical, f utile, and/or dangerous. See, e .g. , United States v. Carter , 484 F

. App’x 449, 457-58 (11th Cir. 2012); U nited States v. Lasley , No. 8 :11CR19, 2011 WL 1630936, at *4 (D. Ne. 2011). T he prompt presentment requirement d oes not require a magistrate to be available twenty-four hours a day, and the government is not required to take the f a s t e s t possible route to the courthouse—just a r easonable o ne. See, e.g. , Van Poyck , 77 F.3d at 289; U nited States v. Yunis , 8 59 F.2d 9 53, 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 a lso U

ni te d Sta tes v . M

i chel , N o. S4- 11- CR.

- 755, 2013 WL 686690, at *3- 4 ( S. D

. N

. Y

. Feb. 26, 2013) ; U ni ted Sta tes v . Annoreno , N o. 06 C R 33- 1, 2009 WL 3518155, at *4 ( N

. D

. Il l

. 2009) ; U

ni ted Sta tes v . Pena O nti v eros , 547 F. Sup p. 2d 323, 339 ( S. D

. N

. Y

. 2008) ; U ni ted Sta tes v . H

a oua ri , N o. S1- 00- CR.

- 15 (JFK ) , 2000 WL 1593345, at *7 (S. D .N

. Y. O ct. 25, 2000) ; U ni ted Sta tes v . Berkov ich , 932 F

. Sup p . 582, 588- 89 (S. D

. N

. Y

. 1996) ; Yong B i ng- G ong , 594 F. Sup p . at 257; U ni ted Sta tes v . D el a m a rra , 275 F. Sup p . 1, 4- 5 ( D

. D

. C. 1967) ; cf

. U ni ted Sta tes v . M

cD ow el l , 687 F. 3d 904, 910- 11 ( 7th Cir. 2012)

. 12 Case: 12-40141 Document: 00512699543 Page: 12 Date Filed: 07/15/2014No. 12-40141

Finally, in applying McNabb-Mallory , a district c ourt should not resort to

a “semanticism that o bscures the f acts” of a case. Leviton , 193 F.2d at 854. The

o v e r al l reasonableness of a delay w ill vary city-to-city, c a se-to-case, justificati o n to-justification. 6 With those b asic p rinciples in mind, we turn to Boche-Perez’s confessions. C) Application of the McNabb-MalloryRule Because t he McNabb–Mallory exclusionary rule concerns itself w ith the delay before the c onfession, we must examine e a c h o f t he defendant’s confessions t o d e t e r m i n e wh e th e r th e y o c c u rred before an unnecessary d elay in presen t m e nt

. 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 1 2:40 p.m., at which p oint they c ontacted ICE. ICE arrived at the port at 1:00 p.m., mirandized the defendant at approximately 1:50
p.m., and interviewed Boche-Perez fr o m 1 : 5 0 p.m. to roughly 3 p.m. In that interview, Boche-Perez denied knowing that the DVDs contained illegal pornography. N onetheless, a t approximately 3 p.m., ICE contac t e d t he U.S. Attorney’s Office to s ee whether they would accept prosecution o f the case. The U.S. Attorney’s office a ccepted prosecuti o n at 3:22 p.m. B oche-Perez’s first confession soon followed.

(i) The 4:15 p.m. Oral Confession The first confession occurred at a pproximately 4:15 p.m. After sec u r i ng prosecution with the U.S. Attorney’s office, I C E turned Boche-Perez over t o a CBP agent to p rocess 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. , Hensl ey , 374 F. 2d at 349; Wi l l i am s , 273 F. 2d at 797- 98. 13 Case: 12-40141 Document: 00512699543 Page: 13 Date Filed: 07/15/2014No. 12-40141

warnings at 4 :13 p.m., and Boche-Perez quickly confessed at approximately 4:15
p.m. Because t h e district court found t hat the six-hour safe harbor r an from 9:10 a.m., and the Government does not challenge that determ i n a t i on, we

assume that the six-hour h arbor safe harbor expired at 3 :10 p .m. Accordingly, when applying the McNabb-Mallory doctine, we need to determine whether the

rou gh l y seven h our delay before Boche-Perez’s first oral confession was reasonable in light of the t otality of t he circumstances. We conclude that it was. First, we agree with the d i s t r i c t court’s f inding that there is “simply no” evidence that “the delay was for t he purpose of attempting t o extract a confession.” T he delays that resulted before Boche-Perez’s confession occurred not be c ause of some e ffort to extend his detention for t he purpose of interrogating him, but rather b ecause of the need for, and the difficulties inherent in, coordination between “the remote law enforcement agencie s 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 t hen from 12:40-3:00,

was attributable to (1) r outine administrative processing and search procedures at the b order, (2) travel time for the officers responsible for investigating the crime, and (3) to determine whether any crime h ad occurred. All t hree types of delay have long been considered reasonable u n d e r McNabb-Mallory case law, and they were e specially s o in this c ase g i v en that the DVDs in question were not e ven disc o v e r e d 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 p ortio n of the delay, from 3 :00-3:22 p.m., occurred because of ICE’s need to consult w i t h the AUSA as to whether criminal charges c ould be filed. Again, such delays have long been sanctioned by courts applying McNabbMallory

. See, e.g. , Davis, 532 F.2d at 25-26.

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The final po r t i o n o f 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 ha d n o t completed, and the AUSA had not reviewed, a criminal complaint f or Boche-Perez. T he ICE agent justified the delay during the suppression hearing by explaini n g that, after receiving the AUSA’s agreement to prosecute t he case at 3:22 p.m., he did not believe that he could complete the complaint in t ime for the local U.S. At t orney’s 4:00 p.m. deadline for cri minal c omplaints. As such, the criminal c o mplaint was not submitted to the U.S. Attorney’s office until t he n ext day, and Boche-Perez was not presented to the m agistrate until t wo full days had p assed from when BochePerez was first placed in hard secondary. Though ICE’s i nability to submit a criminal complai nt t o th e U .S. Attorney by 4 p.m. had the unfortunate effect of delaying Boche-Perez’s presentment by almost 2 4 hours f

rom when it otherwise wo u l d h a v e occured, the length of the ultimate delay does not affect the McNabb-Mallory a nalysis o f B o che-Perez’s 4:15 p.m. oral confession. McNabb-Mallory examines t he reasonableness of the delay at the time of c onfession, not the time of presentment. Accordingly, rather than focusing on the effects that the failure t o have c o mpleted a complaint by 4
p.m. had o n B oche-Perez’s time of presentment, we c o nsider whether i t w a s reasonable to have delayed his presentment past 4:15 p.m. b ecause a c o mplaint had not been completed by that time. That delay was reasonable: a review o f the complaint suggests that it was f a i r for the ICE agent to spend at least thirty minutes preparing t h e complaint—the McNabb-Mallory doctrine does not require government agents and lawyers to act with s uch haste that they omit proofr e a d ing their court filings—and also fair for the relevant U.S. attorney, even though not instantly available, t o insist on reviewing and approving the complaint before it was filed

15 Case: 12-40141 Document: 00512699543 Page: 15 Date Filed: 07/15/2014No. 12-40141

in court. 7 Cf. Davis, 532 F.2d at 25-26; Collins , 462 F.2d at 795; H aines , 188 F.2d at 554-55

. It was r e asonable for t he e ntire process o f preparing and approving the comp l a i nt to take at least an hour. As such, Boche-Perez’s
p resentment had not been unreasonably delayed by the time he confessed because the r e l e v ant governmental personnel h a d not had sufficient time to prepare the paperwork necessary for the initial appearance. Second, a nd in the a lternative, even after the U.S. Attorney’s o f f i c e had approved prosecution at 3:22 p.m., B oche-Perez still had to be administratively processed for immigration purposes a n d paroled into the United States. BochePerez takes exception to the fact that some of t he questions from the CBP agents concerned the DVDs and not just h i s immigration status, b ut his arguments ignore that his p ossession of the DVDs also had significant implications for his immigration status. Under 8 U.S.C. § 1101(a)(13)(C), a n “alien lawful l y admitted for
perm a n e n t r esidence i n the United States”— such as Boche-Perez—“shall not be r e garded a s s eeking an a dmission into the United States for purposes of the immigration law unless t he alien

. . . has engaged in illegal activity after having departed the U nited Stat e s . ” Boche-Perez’s possession of the DVDs p rovided clear and c onvincing evidence that h e h a d e ngaged in an illegal activity after having departed the U nited States. CBP o fficials were accordingly entitled to

7 Becaus e w e cons id er only the reas onablenes s of the d elay until B oche- Perez conf es s ed bas ed on the totality of circum s tances p res ented here, w e d o not p as s jud gm ent on the overall legitim acy und er the Fed eral R ules of C rim inal P roced ure of the o f f ice p olicy that requires crim inal com p laints to be s ubm itted by 4: 00 p .m . on the d ay bef ore p res entm ent f

or review and tran s m i t t a l t o the court. We are mind f ul of the f

act that generally s tand ard ized ad m inis trative p roces ses are in p lace to exp ed ite, r a t h e r t h an d elay, the p res entm ent of
arres tees

. The U

. S. Attorney is CAU TIO N ED , how ever, that Rule 5( a) ’s com m and that a p ris oner be p res ent ed to a m agis trate w ithout unneces sary d elay d oes not m ean w hen op tim ally convenient. “The road to p res entm ent bef ore a m agis trate f

or one accus ed of a crim e s hould not be p aved only w ith good intentions , ” and accord ingly, “d is tri ct courts w ill be required to rule on the reas onablenes s in ind ivid ual cas es of any p re- arraignm e n t d e lays exceed ing s ix hours

. ” U ni ted Sta t es v . Perez , 733 F

. 2d 1026, 1036 ( 2d Cir. 1984)

.

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question him about the DVDs in light of their potential implications for BochePerez’s immigration status. See, e.g. , Gonzaga-Ortega v . Holder , 7 36 F .3d 795, 803-04 (9th Cir. 2 013). It was reasonable for p r esentment to be delayed for administrative processing by an hour or s o t o parole Boche-Perez into the United States. See, e.g. , United States v. Garcia-Hernandez , 569 F.3d 1100, 1102, 1106 (9th Cir. 2009) ( d elay to administratively process at the b order and determine whether to file criminal charges was reasonable); United States v. Collins , 462 F. 2 d 7 9 2, 795-96 (2d Cir. 1972) (delay for administrative processing was reasonable); United S tates v . Fontane-Medina , N o . 11-20492-CR, 2011 WL 6826811, at *19-*21 (S.D. Fla. Nov. 27, 2011) (delay to determine immigration status was reasonable). B o c h e - P e rez raises t wo objections to th e r e a s o n ab l e n e s s o f th e i m m i gr ati o n processing. First, h e objects t o the idea that he was asked questions at all after the U .S. Attorney’s office decided t o prosecute. However, as long as the delay

was not for the purpose of interrogation and was reasonable, as t he district court expressly found here, the McNabb-Mallory doctrine d oes not institute a flat ban

on asking any questions. See, e.g. , Carter , 484 F. App’x a t 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 7 95-96; 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 , 2 59 F.2d a t 798; Yong Bing-Gong , 594 F

. Supp. at 2 57, aff’d, BingNam , 788 F.2d at 4; Michel , 2013 WL 686690, at *3-4; Annoreno , 200 9 WL 3518155, at *4; P

ena Ontiveros , 5 4 7 F. Supp. 2 d at 339; Haouari , 2000 WL 1 5 93345, 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 u nder McNabbMallory during periods of otherwise reasonable delay.

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Second, Boche-Perez objects that our determination runs contrary to the Ninth Circuit’s r uling in United States v. Valenzuela-Espinoza

. See 697 F.3d 742 (9th Cir. 2011). But Valenzuela-Espi n o za i s distinguishable. First, the delay from when the i llegal materials were found to when t h e confession occurred was far longer in Valenzuela-Es p inoza than here—in Valenzuela-Espinoza , the d e f endant was a rrested at 1 1:15 am, and did not c o nfess until sometime afte r 7:30 p .m. By contrast, Boche-P e r e z h a d o nly a four-hour delay between the discovery o f the i ncriminating materials and t h e confession, and indeed, BochePerez confessed within one h our of actually being arrested. Second, ValenzuelaEspinoza indicated that delays in presentment w ere justifiable when caused by “the unavailabili t y o f g o vernment personnel

. . . necessary t o completing the arraignment p rocess.” Id. at 752. The U.S. Attorney i s u n d o u b t e d ly a person necessary to completing the a rraignment process, and the r ecord here indicates that presen t m e nt w a s d e l ayed 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 fo r t h e d e l ays is different— Va l e nzuela-Espinoza dealt with a morning di scovery of illicit materials a nd a m o r n i n g a rrest in m etropolitan Tucson. Moreover, numerous agents were present a t the t i m e of arrest, eight of whom the c ourt determined

were “available to complete V alenzuela-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 s u r p l u s p e rsonnel available to review the criminal complaint, process Boche-Perez for i mmigration
purposes, and transport h im t o the magistrate before 4:15 p .m. If anything, the record shows just the opposite, and i t is Boche-Perez’s burden to substantiate a McNabb-Malloryviolation. In light of the t otality of the circumstances, and especially given t he added complications for l a w e nforcement procedures created by the need for

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immigration proc e s s ing a t ports of e ntry, this case is far closer t o GarciaHer n a n d e z , 569 F.3d at 1106, than to Valenzuela-Espinonza. Accordingly, we reject Boche-Perez’s suggestion that some h o w N inth C ircuit jurisprudence compels the suppression of Boche-Perez’s confession, and we further decline to issue an advisory opinion concerning the o uter-bounds of the McNabb-Mallory doctrine as applied by our circuit and the Ninth Circuit. The totality of the circu mstances, when considered under the McNabbMallorycases, indicates that the Government’s delay in not presenting BochePerez 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 d e ni e d th e m o ti o n t o s uppress notwithstanding the lengthy delay before he w as presented. Even i f we assume arguendo t hat the delay became unreasonable a t some point b efore Boche-Perez was p r e s e nt ed to the magistrate,

a ny s ub s e qu e nt il l e g al ity “ d o es not retroactively change the circumstan c e s u n d e r which” Boche-Perez confessed. Mitchell , 322 U.S. at 70.

(ii) The 6:00 p.m. Written Confession Boche-Perez’s second c onfession occurred at aro u n d 6 : 0 0 p . m . Af t e r B o c h e P e r e z ’s oral confession at approximately 4:15, the CBP officer began t h e preparation of a w ritten c o n f e s s ion. The C BP o fficer t ook f rom approximately 4:20 p.m.-5:10 p.m. to prepare the statement. Boche-P e r e z t h e n reviewed the statement, and signed the written confession at 6:00 p.m. That delay was also r easonable. Reasonable delays for transf e r r i n g an oral c o nfession into w riting 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

. 2 d at 636; Long , 360 F.2d at 832-33; Vita , 294 F.2d at 532; Haines , 188 F.2d at 554-55; Delamarra , 2 7 5 F

. S u p p . at 4-5. As the D .C. C ircuit observed in M etoyer v. United States :

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[T]he real thrust of the objection goes t o the very rendering of the confession to written form. This is an attack upon a fundamental concept of the law t h a t h a s always favored and encouraged the writing o f f reely expressed declarations w hich are known to be o f c r ucial importance in order to minimize litigation and disputes a s to just what was said. Delay does not mean mere passage of time; it means p assage o f time during which that which should and could be done is not done.
250 F.2d at 33. Moreover, even if the delay for t r a n s l a t i n g Boche-Perez’s oral confession into a written confession was unreasonable under McNabb-Mallory,
any err o r w as harmless. Boche-Perez’s 6 :00 p.m. w ritten “ confession overlapped in material respects” with h is 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 C

arter , 4 84 F. App’x at 457-58; United S tates v . Ragland , 434 F. App’x 863, 869 (11th Cir. 2011).

(iii) The 9:00 p.m. Oral Confession Boche-Perez’s final c onfession occurred at 9 p.m. when h e c onfessed to the ICE agent that he possessed additional i llegal pornography at his h ome 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 M

cNabb-Mallory, any error w ould be necessarily h armless (under any standard o f review) with respect to the offense to w hich Boche-Perez pleaded guilty. He had a lready twice confessed to t h at crime, and h is earlier

c o n f essions were admissible under the M cNabb-Mallory doctrine. Thou g h Boche-Perez did confess to additional criminal a c tivity i n h i s 9:00 p.m. interview, he cannot show a ny p r ej u d i c e in this particular case from the district court’s refusal t o suppress the confession because (1) he did n ot plead guilt y t o a n y of those additional o ffenses, a nd (2) t he district court declined to consider the additional evidence that the government seized following the third confession at Boche–Perez’s h ome in Arkansas with respect to s entencing. As s uch, w e do not consider his allegation of error.
20 Case: 12-40141 Document: 00512699543 Page: 20 Date Filed: 07/15/2014No. 12-40141

2) Voluntariness Boche-Perez also challenges the voluntariness o f h is three c onfessions. To determine whether a c onfession is v o luntary we c o n s ider 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 a ssessment are the length of time b etween arrest and before arraignment, whether t he defendant w a s a w are of the p otential charges against him when he gave h is statement, w hether h e was apprised of his rights, whether he had counsel, whether the d e l a y w a s for purposes of interrogation, and w hether the interview was “hostile.” I d. a t 6 25-27; see also Bustamante-Saenz , 894 F.2d at 120. The to t ality o f the circumstances shows that Boche-Perez’s statements

were voluntary even though he was not presented to a magistrate judge until two d ays af

t er his detainment. See Cantu-Ramirez , 669 F

. 3d at 625-27. In particular, prior t o his confession, he was a ware of the charges against him and validly waived h is 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 w hich the interrogation took place was large w i t h o f f i c ers walking in and out, a n d s everal other individuals were also being detained there. While Boche-Perez suggests t hat there was no evidence t hat he w as given water

or b a t h r o o m breaks, he does not affirmatively state that he was not given adequate water or breaks, and the testimony o f t he a gents w ho interviewed him indicated that he did r eceive b oth water and breaks to visit the r estroom. After waiving h is rights immediately before the interview, Boche-Perez admitted that he knew the DVDs in his l uggage contained child pornography and then signed

a written statement t o that e ffect. Although Boche-Perez was handcuffed du ring the interview, there is no evidence that his int e r v i e wer or any other agent threatened Boche-Perez or promise d h i m anything. See United States v.

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Cardenas , 410 F.3d 287, 295 (5th Cir. 2005) (“Such basic police procedures as restraining a s uspect with handcuffs have never been h e ld 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 pri o r t o t h e interview. This argument is without merit. By 9 p.m. Boche-Perez had already waived his rights twi c e, and he has not challenged the voluntariness of his waivers. Additional warnings were not r equired. See Soffar v. Cockre l l , 3 0 0 F.3d 588, 592-93 (5th Cir. 2002) (en banc). CONCLUSION We AFFIRM the district court.

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JAMES L. DENNIS, Circuit Judge, concurring: Carmen Boche–Perez moved to suppress the confession s h e m ade to arresting officers while in custody on the ground that t hey were i nvoluntary and that t he gov e r n m e n t ’ s two-day delay in presenting him to a magistrate judge

r e quired suppression under the McNabb–Mallory exclusionary rule. Se e 1 8 U.S.C. § 3 501(c); F E D

. R. C R I M

. P. 5 (a)(l)(A); Corley v. United States , 556 U.S. 303 (2010); M

allory v. United States , 354 U.S. 449 (1957); M cN a b b v. United States , 318 U.S. 322 (1943). I agree with the majority’s c o nclusions that the confessions

were voluntary and that Boche–Perez’s first t wo confessions n eed not be suppressed because the government’s delay in o btaining those confessions was reasonable under the circumstances and not calculated to extract a confession, and that t h e a d mission of his third confession, w hich occurred at 9 :00 p.m. on the evening h e was a rrested, was at m ost harmless error. I write s e parately to emphasize two points. First, it is only under the unusual circumstances of this

case that B oche–Perez’s 9:00 p.m. confessi o n i s 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 o therwise admissible confession obtained during a period of l awful detention i s not subject to suppression merely because of the government’s subsequent f ailure promptly to take t he confessing defendant before a magi s t r a t e. United States v. Mitchell , 3 22 U.S. 65, 70-71 (1944). Accordingly, I c oncur in the majority’s o pinion affirming the d enial 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 a nd Corley

. After Boche–Perez first confessed, he was forced to wait nearly six more hours before h e was booked into the Webb County jail a t 11:40 p.m. that night. Much

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of that delay is due to the fact that the government inexpl i c a b l y w a ited three h o u r s b efore i nterviewing Boche–Perez again at approximately 9:00 p.m. The government offered no justification for this delay, and Agent Silva’s testimony

s uggests that he reinterviewed Boche–Perez at 9:00 p.m. t o get more inf o r m ati o n that would enable him t o obtain a sea r c h w a r rant of Boche–Perez’s home in Arkansas. Cf. Mallory , 354 U.S. at 455 (“[T]he d elay must not be of a nature to give opportunity f

or the extraction o f a c o nfession.”); U nited States v. Liera , 585 F.3d 1 237, 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 a u dio r ecording of Liera’s statements was . . . unnecessary to complete the arraignment p rocess or determine whether to file c riminal 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. , A r i zona v. Fulminante , 499 U.S. 279 (1991) (holding that harmless-error analysis applies to admissibility o f coerced confessions); Premo v. Moore , 1 31 S. C t. 733, 745 (2011) ( disc u ssing, t hrough lens of § 2254 and Strickland , a pplication of Fu l m i n a n t e ’s harmless-error rule to

cases involving plea bargains when t he defendant m ight have moved t o suppress his confession b u t f

a iled to do so). Boche–Perez never asked this court or the district c ourt 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–Per e z ’ s e arl i er confessions, and

even w ithout considering the 9:00 p .m. confession, there was ample evidence against Boche–Perez both i n t h e f orm of the DVDs agents discovered in Boche–Perez’s luggage and h is earlier confessions. The 9 :00 p.m. confession also did not a ffect Boche–Perez’s sentence b e c a u se the district court d e clined to consider the additional evidence that the government seized following the third

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confession at B oche–Perez’s home i n Arkansas. A dditionally, the government gave no indication that its prosecution depended on the admission of Boche–Perez’s 9:00 p.m. confession—or a ny confession at a ll—because the U.S. Attorney’s offi c e i n dicated its willingness to proceed w ith prosecution before Boche–Perez confessed, and Boche–Perez does not now deny that he knew that the DVDs c ontained child p ornography. Cf. Premo , 131 S. Ct. at 745 (explaining, in § 2254 case, that “even on direct r e v i e w , ” the erroneous admission of the defendant’s confession l ikely would have been harmless error because “ evidence against [the defendan t ] w as s trong[;] [t]he accounts of [his] [two] confession[s]

. . . co r r o b o r a t e d e ach other[;] [t]he State gave no indication that its

. . . prosecution depended on the admission o f the police confession[;] and [the defendant] does not now deny” t h a t h e committed the offense to which he pleaded guilty). Therefore, I agree with the majorit y t hat the denial of Boche–Perez’s m o t ion to suppress his 9:00 p.m. c onfession was at m ost h armless

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 n ot warrant the suppression of his confessions. That delay

—b e c a use it occurred after Boche–Pere z c o nf

essed—does not require the s uppression o f his c o nfessions. See Mitchell , 322 U.S. at 7 0

- 7 1 ; Corley , 556 U.S. at 306 (“[A]n arrested person’s confession is i nadmissible if given after an unreasonable d elay in bringing him before a judge.”) (emphasis added). However, I am not u nsympathetic to Boche–Perez’s c omplaint t hat he was forced t o s pend two nights in j a i l b efore being p resented t o a magistrate. The government offers no e xplanation for this delay o ther than its compliance with the U.S. Attorney’s office policy that requires arresting officers to s u b m i t the paperwork f or a d efendant’s initial

25 Case: 12-40141 Document: 00512699543 Page: 25 Date Filed: 07/15/2014No. 12-40141

appearance by 4:00 p.m. on the day before the defendant is present e d t o a magistrate judge. After arresting Boche–Perez and obtaining both w ritten a n d oral confessions a n d securing his prosecution by the U.S. Attorney’s office, the government delayed presenting B oche–Perez t o a magistrate judge f or two days after the government agreed to prosecute him. The U.S. Attorney’s office agreed to prosecute B oche–Perez at 3:22 p.m. on Wednesday, October 2 7 , 2 010, and agents booked him into the county jail t hat same evening. The federal building

was w ithin a ten-to-fifteen minute drive from where Boche–Perez was a rrested, and agents confirmed that they h ad everything th e y n e e d ed to proceed with a prosecution. The record does not reflect that the delay was due to a shortage of government p ersonnel 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 j udge on the morning of Friday, October 29, 2010. Under the circumstances, the arresting officers did not take Boche–Perez “without unnecessary d e l a y b efore a magistrate j udge,” F E D

. R. C R I M

. P. 5(a)(l)(A), thereby violating the r equirement that an arre s t i ng 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 Boc h e

– Perez to a magistrate judge does not r equire the suppression of B o c h e

–P e rez’s confessions, s ee, e.g. , Mitchell , 322 U.S. at 7 0

- 7 1 , th e go v e r n m e nt ’ s conduct i n this case flouted the letter a nd p urpose of Rule 5(a) and the promptpresentment 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 t he innocent but also in securing conviction of the gui l ty by methods that commend themselves to a progressive and self-confident society.

. . . [It] checks resort t o those

26 Case: 12-40141 Document: 00512699543 Page: 26 Date Filed: 07/15/2014No. 12-40141

r e p r e h e nsible practices known as the ‘third degree’ which, though universal l y 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.” M allory , 354 U.S. at 452-53 (qu o t i n g M cNabb , 318 U.S. at 343-44) (quotation marks and alteration omitted). Indeed, the Fourth Amendment requires that a defendant receive a judicial determin a t i o n o f probable cause promptly a fter 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 p robable cause was susceptible to a Fourth Amendment challenge brought pursuant to 42 U.S.C. § 1983). I do not think that t he government’s extended delay i n presenti n g Boche–Perez t o a magistrate judge after he confessed can be j ustified solely by the 4 :00 p.m. de a d line imposed by the U

. S. Attorney’s office. As the S upreme Court elucidated in McLaughlin , for Fourth A mendment purposes, simple

a d ministrative rules or practices are unlikely to justify a lengthy del a y i n 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 C o u n t y ’s policy of offering combined probable-cause d eterminations and arraignments within two days of arrest, e xclusiv e of Saturdays, Sundays,

or holidays—are unlikely to justify a lengthy delay). 1 Applying similar reasoning, in United States v. Valenzuela–Espinoza , 6 9 7 F

. 3 d 742 (9th Cir.

1 While M

cLa ughl i n ad d res s ed governm ent of f icials ’ obligations und e r the Fourth Am end m ent, M

cLa ughl i n p rovid es ap t guid ance becaus e it cons id ered a factual scenario very s im ilar t o t h e o n e p r es ented in our cas e and ap p lied a s tand ard quite sim ilar to the p rom pt- p res entm ent requirem ent s et f orth in Corl ey and Fed eral Rule of Crim inal Proced ure 5, nam ely, that the governm ent m us t of f er p robable- caus e p r o c e e d ings “as s oon as is
reas onably f

eas ible. ” M

cLa ughl i n , 500 U

. S. at 57; cf

. F E D

. R. C R I M

. P. 5( a) (l) (A) ; Corl ey , 556 U

. S. at 306 ( exp laining that the p rom pt- p r e s e n tm ent rule requires that an arres ting of f icer
m us t bring an arres tee bef ore a m agis trate “as s oon as he reas onably c[ an] ” ( em p has is ad d ed))

.

27 Case: 12-40141 Document: 00512699543 Page: 27 Date Filed: 07/15/2014No. 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 . o n the intended day of t h e hearing—a policy nearly identical to t he one here—was unreasonable and unnecessary under Rule 5(a) a nd Corley–McNabb–Mallory

. 2 That is not t o s a y that a ll delay c aused by administrative rules will necessarily b e unreasonable. I share the m ajority’s appreciation for the need for

some administrative deadlines to streamline busy dockets. For example, “courts have found i t permissible for the police to wait for regular business hours to bring the suspect to court.” C H A R L E S ALA N WR I G H T & A N D R E W D. L E I P O L D , 1 F E D E RA L P RA C T I C E & P R O C E D U R E § 7 3, at 185 & n.21 (4 t h e d

. 2 0 0 8 ); see, e.g. , United States v . Redlightning , 624 F.3d 1 090, 1109 (9th Cir. 2010) (“[N]o magistrate judge was reasonably available until 2:30 p.m. on October 3, when the next arraignment calendar com m e n c ed, so the d e lay until 2:30 p.m. on October 3 was reasonable.”). Here, though, Boche–Perez was not brought promptly to a magistrate a t t he next arraignment c alendar, on the T hursday after he was arrested; i nstead, he w a s f o r ced to remain in jail until Friday morning. See United States v. Wilson , 838 F

. 2 d 1081, 1 085 (9th Cir. 1988) (“Even assuming that th e delay overnight was reasonable, t h ere is no reasonable

excuse why Wilson was n ot promptly a rraigned at the beginning of the arraignment c alendar the next day.” (footnote omitted)); Valenzuela–Espinoza , 697 F.3d at 7 51 (“An internal policy agreed u pon b y prosecutors and magistrate judges cannot trump t he requirements of a federal statute and the Federal Rules of Criminal Procedure.

. . . It i s n o t t h e longstanding principle embodied in M c N a b b

–Mallory that must give w ay to local paperwork needs, but the loca l paperwork policy that must be tailored to the requirements of McNabb–Mallory ,

2 In V a l enz uel a–Esp i noz a , unlik e in the pres ent cas e, the d ef end ant conf

es s ed d uring this p e r i o d of unneces s ary d elay—not bef ore it—theref

ore requiring the s up p res s ion of his conf es sion. 28 Case: 12-40141 Document: 00512699543 Page: 28 Date Filed: 07/15/2014No. 12-40141

its implementin g s t a t ute, and rule.” (internal quotation marks a nd citations omitted)). To my mind, the extended d e lay that occurred in Boche–Perez’s case casts s ignificant doub t upon whether the 4:00 p.m. p olicy i s tailored to the requirements of McNabb–Ma l l o ry . S uch administrative rules s hould not routinely cause extended delays in p r esentment merel y b ecause they are convenient: convenience is not necessity. A s I h ave said, I a gree with the majority that the two-da y d e l a y i n presenting B oche–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. T hat is not to say, however, t h a t the d elay in presenting Boche–Perez to a magistrate was reasonable or necessary. “ Such delay

. . . is not acceptable as s tandard operating procedure; far from i t.” Unite d S tates v. Perez–Bustamante , 963 F .2d 48, 5 4 (5th C ir. 1992); see Miranda v. Arizona , 384 U.S. 436, 463 n.32 (1966) (st ating, with respect to t he McNabb–Mallory rule, that the C ourt’s “decision today does n ot indicate in any manner, of c ourse, that these rules can b e disregarded. When federal officials arrest an i n dividual, they

mu s t as always c omply with the dictates of the congressional legislation and cases thereunder.”). In conclusion, I concur but w rite separately to amplify the m ajority’s admonition, ante at n .7, t hat a government agency’s internal timetables cannot ipso facto justify extended delays in presentment.

29 Case: 12-40141 Document: 00512699543 Page: 29 Date Filed: 07/15/2014