Sunday, June 29, 2014

Case o' The Week: Four Days Too Slow, for I/A Show - Torres Pimental and McNabb-Mallory Rule

Hon. Judge Harry Pregerson

   How long does it take the feds to drive a defendant seventeen miles, to appear before a MJ and get appointed counsel?
  Four days! (about .35 miles per hour).
United States v. Torres Pimental, 2014 WL 2855009 (9th Cir. June 24, 2014), decision available here.

Players: Decision by Judge Pregerson, joined by Judges Fisher and DJ Daniel. Nice win by AFD’s Zandra Lopez and Devin Burstein, Fed. Def. of San Diego, Inc.

Facts: Luis Torres Pimental was a passenger in a car driven by a woman, Canales, that was stopped at the border on Friday Jan. 14, 2011. Id. at *1. A search revealed over 150 pounds of marijuana hidden in the car. Id. At 11:54 a.m., Torres Pimental declined to speak to agents, and asked for an attorney. Id. at *2. Less than hour later, Canales was interviewed, confessed, and implicated Torres Pimental. Id. at *2. At 5:00 p.m., an agent signed a complaint against both. Id. Earlier that day, there has been a 2:00 p.m. magistrate court in San Diego – just twenty-two minutes away from where Torres Pimental has been held. Id. Nearly 48 hours after arrest, Torres Pimental was finally driven up to the federal detention center. Id. at *3. On the drive, a conversation with the agent ultimately produced a confession. Id. Four days after arrest – on Tuesday Jan. 18 – Torres Pimental finally made an initial appearance and counsel was appointed. Id. at *4. His motion to suppress was denied, he entered a conditional plea (available in SD Cal, a rare beast indeed in the ND Cal USAO), and appealed.

Issue(s): “Torres Pimental argues that his incriminating statements must be suppressed because of an unnecessary or unreasonable delay under Federal Rule of Criminal Procedure 5(a) and the McNabb-Mallory rule.” Id. at *4.

Held:We agree.” Id. “Although we understand why law enforcement sought to strengthen its case against Torres Pimental further, the delay in presenting Torres Pimental to a magistrate judge in order to interrogate him and Canales was unreasonable.” Id. at *8 (emphasis in original). “[T] he district court clearly erred when it determined that the delay in presentment was reasonable and necessary and erred when it declined to suppress the incriminating statements that Torres Pimental made to [the] Agent . . . on Sunday morning, about forty eight hours after his Friday morning arrest, and before he was presented to a magistrate judge on Tuesday. . . We reverse the denial of Torres Pimental’s suppression motion [and] vacate his conviction . . . .” Id. at *8.

Of Note: In Torres Pimental Judge Pregerson carefully lays out the McNabb-Mallory rule: a line of authority (and a statute) that governs how quickly a defendant must be presented to a magistrate after arrest. Id. at *5-*6. He’s unimpressed with the government’s claim that the delay was necessary because of the three-day weekend between arrest and presentment. Id. at *7. On the Friday before that long weekend, it was only 22 minutes to the court, there were no shortage of agents, and a magistrate judge was on the bench. Id. at *6. A welcome decision to bear in mind, when first meeting a client on the Tuesday after a long holiday weekend.

How to Use: The agents couldn’t get Torres Pimental to a magistrate, the government argued, because they hadn’t finished leaning on the driver, Canales. Id. at *7. “[N]ot a valid reason to delay . . .”, Judge Pregerson writes. Id. at *7. The agents caught Torres Pimental with 150 pounds of marijuana in the car – including three packages in his passenger seat. Id. at *8. Feds can’t stall presentment (and counsel appointments) to lean on our clients for confessions, when there’s already enough evidence to file a complaint. Id. at *7-*8. Torres Pimental is a very good McNabb-Mallory decision – take a look when there’s a fishy presentment delay.

For Further Reading: -2 OL for drug offenses: good. 
  Full retroactivity? Better.  
  On July 18th, the Sentencing Commission will vote on whether to make their enlightened amendment to the drug guidelines retroactive. For an accessible account of the recent testimony, see the summary here

Sentencing Commission logo from 

Steven Kalar, Federal Public Defender Northern District of California Website at


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