U.S. v. Perez-Bustamante ( 1992 )

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 Rafael Perez-
Bustamante's confession, given on Monday morning, the day before
New Year's and approximately 60 hours 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.
1
Senior Circuit Judge of the Ninth Circuit, sitting by
designation.
I.
At 9:00 p.m. on Friday, December 28, 1990, in response to a
sensor alert,2 Border Patrol Agents were dispatched to an area near
the Rio Grande River, sixteen miles east of the International
Bridge at Brownsville, Texas. 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 interviewed 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 the
2
A sensor is a device planted in the ground that alerts to
pressure vibrations in the area around it.
3
An agent drew his pistol and shouted (in Spanish)
"Immigration. Drop the pistol." After this command was repeated
several times, Perez obeyed.
4
Perez does not challenge this confession.
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reason for his arrest and his rights in deportation proceedings.5
Because the Border Patrol was not authorized to process Perez
on drug charges, it notified DEA Agent Tamayo of the seizure and
that 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.6
5
Those forms were: I-213 (Record of Deportable Alien); I-214
(Rights Form); I-221 (Form of Arrest for Illegal Entry Form) and I-
274 (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....
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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 offered
THE 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 Magistrate 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.
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after Tamayo informed him of the charges.7 The interview, which
included fifteen minutes of taking 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 indicted 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 his
7
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 explained 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).
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appearing before a magistrate. In March 1991, Perez was tried
before a jury and convicted on all counts. He was sentenced, inter
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 given." 18 U.S.C. §
9
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.
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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 the assistance of counsel; and (5) whether or
not such defendant was without the assistance of
counsel when questioned and when giving such
confession.
The presence or absence of any of the above-
mentioned 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
obligation to attack anything .... What I am
saying is that the Government has not fulfilled
[its] burden in proving that Rafael Perez-
Bustamante 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?
10
Although Perez did not rely on Rule 5(a) in district court, he
did rely, as noted, upon § 3501.
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[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 Monday 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
think 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, that 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
trial 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 or given
by such person within six hours immediately
following his arrest ... Provided, That the time
limitation ... shall not apply in any case in which
the delay in bringing such person before such
magistrate ... beyond such six-hour period is found
by the trial judge to be reasonable considering the
means of transportation and the distance to be
traveled to the nearest available such magistrate
or other officer.
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18 U.S.C. § 3501(c). Perez asserts that § 3501(c) renders
inadmissible all confessions obtained more 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 confessions obtained more than six hours
after arrest that can be admitted are those that
were elicited during the time necessary for travel
to the magistrate, we agree with the 9th Circuit
[United States v. Halbert, 436 F.2d 1226 (9th Cir.
1970)] that Congress did not intend to legislate
any such arbitrary edict. We believe the correct
interpretation to be that Congress established six
hours as a minimum period which would pass muster.
If, therefore, a longer 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 delay was for the purpose of
extracting a confession 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 convicted, 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." Id. at 120 (quoting United States v. Causey, 835 F.2d
1527, 1529 (5th Cir. 1988)). "[D]elay is `simply one factor which
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must be considered along with other factors in determining
voluntariness.'" Id. (quoting United States 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 was 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 McLaughlin, the 60 hours between
his arrest and confession is "not tolerable".11 "In Gerstein v.
Pugh, 420 U.S. 103 (1975), [the] Court held that the Fourth
Amendment requires a prompt judicial determination of probable
cause as a prerequisite to an extended pretrial detention following
a warrantless arrest." McLaughlin, 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 an
11
McLaughlin was decided approximately two and one-half months
after the suppression hearing in this case.
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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, "prolonged detention [by a State] based on
incorrect or unfounded suspicion may unjustly `imperil [a]
suspect's job, interrupt his source of income, and impair his
family relationships.'" Id. at 1668 (quoting Gerstein, 420 U.S. at
114) (brackets by Supreme Court). The Court stated in McLaughlin
that its "purpose in Gerstein was to make clear that the Fourth
Amendment requires every State to provide prompt determinations of
probable cause...." Id. 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. See 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 the issue of
unreasonable delay and by placing voluntariness before the trier of
fact.12
The delay reflected 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
Perez requested, and received, an instruction pertaining to
the statement's voluntariness.
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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 immediately 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, Perez 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.
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III.
Accordingly, the judgment is
AFFIRMED.
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