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USAO Scolded for Not Prompt Presentment, Keeps Conviction

By William Peacock, Esq. on June 23, 2014 | Last updated on March 21, 2019

You already know where this is going from the title: "harmless error," but last week's Boche-Perez decision, out of the Fifth Circuit, provides a stern warning to the overburdened law enforcement agencies near the Mexican Border: a little delay in processing might be fine, even a smidge beyond the six-hour "safe harbor" for prompt presentment of a criminal defendant to a magistrate judge.

But Rule 5 of the Federal Rules of Criminal Procedure requires that "[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge," and while there is that wiggle room, if authorities wait too long, they risk losing a confession and possibly a conviction.

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Boche-Perez Gets Busted

Flagged as a potential drug smugger due to his criminal history, Boche-Perez got extra attention at the border, including a trip to the secondary inspection room. Meanwhile, a search of his belongings found DVDs containing child pornography.

Here is the timeline:

  • Arrived at the border at 9:00 a.m. on Wednesday
  • DVDs discovered at 12:40 p.m.
  • Interviewed by an ICE agent at 1:50 p.m., waived Miranda, and denied knowledge of the contents of the DVDs
  • Interview ended shortly before 3:00 p.m. (the six-hour mark).
  • Assistant United States Attorney agreed to prosecute at 3:22 p.m.
  • An immigration interview commenced at 4:00 p.m.
  • Boche-Perez confessed orally at 4:15 p.m., signed the written version at 6:00 p.m.
  • At 9:00 p.m., before transporting him to jail, Boche-Perez was interrogated again, and this time confessed to having child pornography in his home in Arkansas.
  • Boche-Perez is presented to a magistrate judge on Friday morning.

Needless to say, it was more than six hours before the interrogations ceased. And it was even longer before he was presented to a magistrate judge -- two days, in fact.

Not Prompt Presentment Remedies

In McNabb and Mallory, the Supreme Court held that the proper remedy for delayed presentment is exclusion of any confessions obtained during the period of unreasonable delay. Congress modified the McNabb-Mallory framework in 1968 to include a six-hour safe-harbor, if the confession was made voluntarily.

Did you catch the added emphasis there: unreasonable? Though it was seven hours between the border stop and the first confession, the district court and the Fifth Circuit agreed: the delay wasn't unreasonable due to the need to coordinate between multiple law enforcement agencies and the AUSA, all at one of the most busy Mexican border crossings. And most importantly: there was no indication that the delay intentionally done for the purpose of extracting a confession.

Another vital point: the six-hour clock is measured by the time of the confession. Though it was roughly two days before Boche-Perez was presented to a judge, it was only seven hours before he confessed -- the extra hour, in light of the "totality of the circumstances," was far from unreasonable.

Harmless Error, With a Warning

But wait, what about that final confession? He pled guilty to charges related to the DVDs at the border, and was sentenced for those crimes alone.

Because he was not charged for the additional criminal activity disclosed in the late-night confession, and because the evidence found in Arkansas was not considered by the judge during sentencing, the panel labeled the third confession "harmless error."

But, Judge James L. Dennis wrote a concurrence to express just how egregious the delay actually was. The USAO justified the two-day delay because department policy requires the indictment draft to be turned in by 4:00 p.m., and the AUSA didn't decide to bring charges until 3:22 p.m., giving him less than an hour before the end of day deadline.

"It is not the longstanding principle embodied in McNabb-Mallory that must give way to local paperwork needs, but the local paperwork policy that must be tailored to the requirements of McNabb-Mallory," Judge Dennis wrote.

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