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. 

Image of the Honorable Harry Pregerson from http://www.shelterpartnership.org/common/images/newsletter/2013/winter/l02.jpg

Sentencing Commission logo from https://www.signup4.net/Upload/UNIT11A/20142004E/JS%20USSC_Logo.gif 

Steven Kalar, Federal Public Defender Northern District of California Website at www.ndcalfpd.org

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Case o' The Week: Gimme Shetler -- Post illegal-search statements

The Ninth ended 2011 with a bang, with a pair of great suppression cases relating to statements. We'll turn primarily to Shetler and post illegal-search statements, but Valenzuela-Espinoza (discussed below) deserves a close read as well. United States v. Shetler, 2011 WL 6794021 (9th Cir. Dec. 28, 2011), decision available here.

Players: Decision by Judge Reinhardt (below left), joined by Judge Berzon and visiting District Judge Kennelly. Big win for Central District Ass’t Federal Defenders Victor Cannon, Liliana Coronado, and Ashwini Mate.

Facts: After Scott Shetler’s daughter snitched him out, cops searched his garage and found chemicals and gear related to cooking meth. Id. at *1. That search was legal.

The cops then seized Shetler, got his girlfriend to “consent” to a search of the house, searched his house and re-searched the garage. Id. at *1-*2. This second round of searches produced many more things used to make meth, including chemicals and flasks. Id. at *2. The detained Shetler watched this search from outside. Id. About five hours after being seized Shetler was Mirandized and confessed to making meth. Id. at *2.

The next day Shetler was Mirandized and interrogated twice more (in custody), expanding his confession each round. Id. The district court upheld the search of the garage, suppressed all evidence seized in the subsequent illegal searches, but permitted Shetler’s multiple confessions to come in at trial. Id. Shetler was convicted.

Issue(s): “Shetler argues . . . that the district court erred in denying his motion to suppress the statements regarding his drug activities that he made to a DEA agent on the night of his arrest outside his home and those he made during his interview at the DEA office 36 hours after his arrest.” Id. at *4. “The question . . . is whether the district court erred in finding that the statements made by Shetler at the DEA office were not sufficiently connected to the preceding illegal searches to constitute ‘fruit of the poisonous tree.’” Id.

Held: “The government did not bear its burden of showing that Shetler’s statements were not the product of illegal searches. Contrary to the district court’s determination, there is no evidence in the record to support the conclusion that the statements were ‘the product of the initial legal search of the garage . . . and were not tainted by the illegal searches of the garage.’” Id. at *5.

Of Note: The Shetler suppression holding gets the big defense buzz. The opinion, however, also gives us some first-impression interpretations of a federal drug statute here in the Ninth Circuit. Section 856(a)(1) of Title 21 criminalizes the “use” of a place with the purpose of manufacturing, distributing, or using drugs. Id. at *8. Shetler’s home drug lab was to make meth for his own use (he claimed): a crime outside of the “commercial” drug acts targeted by this crack-house law (he argued). Id.

Judge Reinhardt rejects this interpretation, but adds limitations to the statute to dodge Shetler’s constitutional challenge. Id. at *9 (restricting application of this statute in the context of residences, to offenses where drug manufacture, distribution, or use is a primary purpose).

It is an important decision – for us in NorCal, it is hard to read Shetler’s interpretation of the crack house statute without an uncomfortable thought for all those little private, home-use marijuana grows out amongst the redwoods.

How to Use: Regardless of any evidence from the illegal searches, agents probably had probable cause to (arrest) and question Shetler about his drug activities. If that’s true, what’s his beef with the use of his confessions?

Answering that question, Judge Reinhardt carefully explains the different analyses for confessions arising from illegal detentions, versus illegal searches. Id. at *5. One additional problem with statements after illegal searches is that interrogated suspects can be confronted with evidence that was illegally obtained. Id. Another unique problem with post-search interrogation (versus post-seizure), is that a suspect who knows that evidence has been seized will view silence as futile, and will confess. Id. at *6. It is a compelling, and common sense explanation of why post-search confessions deserve their own unique analysis.

Turn to Shetler when faced with a post-search confession, and bear in mind that post illegal-search confessions may be much more vulnerable than post illegal-seizure statements.

For Further Reading: An equally good case on the suppression of statements was delivered on the same day as Shetler: United States v. Valenzuela-Espinoza, 2011 WL 6794013 (9th Cir. Dec. 28, 2011), decision available here.

In Valenzuela-Espinoza, Judge Betty Fletcher refuses to let agents off the presentment hook when they elicit a confession eight hours after arrest, and don’t bring the suspect before a magistrate until the next day. Id. at *1-*2. It is an excellent decision on the McNabb-Mallory rule, and is a case that may prompt a shake-up for court arraignment policies in a Ninth Circuit district or two . . . .


Image of the Honorable Stephen Reinhardt from http://abovethelaw.com/stephen-reinhardt/ Image of the "Gimme Shelter" cover from http://www.steady130.com/wp-content/uploads/2011/05/gimmeshelter.jpg


Steven Kalar, Senior Litigator N.D. Cal FPD. Website at www.ndcalfpd.org


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