U.S. v. Liera, 07-50546.

• Decision Date: 04 November 2009
• Docket Number: No. 07-50546.,07-50546.
• Citation: 585 F.3d 1237
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos Zarate LIERA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

585 F.3d 1237

UNITED STATES of America, Plaintiff-Appellee, v. Carlos Zarate LIERA, Defendant-Appellant.

No. 07-50546.

United States Court of Appeals, Ninth Circuit.

Argued December 10, 2008.

Submitted May 5, 2009.

Filed November 4, 2009.

Steven F. Hubacheck, Federal Defenders of San Diego, San Diego, CA, for the defendant-appellant (argued and on the briefs).

Karen P. Hewitt, United States Attorney, Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Mark R. Rehe, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding. D.C. No. CR-07-00488-LAB-1.

Before: HARRY PREGERSON, D. W. NELSON and DAVID R. THOMPSON, Circuit Judges.

PREGERSON, Circuit Judge:

Carlos Zarate Liera ("Liera") was convicted of two counts of bringing aliens into the United States for financial gain and aiding and abetting, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2. Liera was also convicted of two counts of bringing aliens into the United States without presentation, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). On appeal, Liera's primary argument is that the district court erred by not suppressing incriminating statements Liera made to law enforcement officers during the time they unreasonably and unnecessarily delayed presenting him before a magistrate judge for arraignment.¹ We have jurisdiction under 28 U.S.C. § 1291. We agree and vacate Liera's convictions and remand for a new trial.

I. FACTS

On February 15, 2007, at about 4:15 a.m., Liera entered the United States from Mexico at the Calexico West Port of Entry. Liera was driving a 1989 Chevrolet pickup truck with Mexican license plates. During a border search of the truck, Customs and Border Protection ("CBP") officers found two unrelated aliens, Le Chen and Wu Chen, under the truck's hood lying in separate built-in compartments located on each side of the engine.² CBP officers also found a cell phone. It is unclear whether the cell phone was found in the truck or whether the cell phone was found in one of Liera's pockets during a pat-down search.

Following Liera's arrest, CBP Officer Figueroa interrogated Liera on two separate occasions.³ At 9:18 a.m., about five hours after Liera's arrest, Officer Figueroa interrogated Liera for the first time. During this first interrogation, Liera denied knowing that Le Chen and Wu Chen were under the truck's hood. Liera told Officer Figueroa that the truck belonged to his uncle's neighbor, Raul Gonzales, and that he borrowed the truck because his truck had two flat tires and he needed to get to work. Liera also told Officer Figueroa that he was an agricultural field worker in Calipatria, California, and was on his way to work.

At 10:45 a.m., Officer Figueroa interrogated material witnesses Le Chen and Wu Chen. Neither identified Liera as part of a scheme to bring Le Chen, Wu Chen, or any other aliens into the United States.

At 1:30 p.m., Officer Figueroa discovered that the video recording equipment used in the first set of interrogations malfunctioned. Liera, Le Chen, and Wu Chen's interrogations were recorded without sound because of a battery problem. Officer Figueroa then contacted the United States Attorney's Office. An Assistant United States Attorney gave Officer Figueroa the "green light" to interrogate Liera, Le Chen, and Wu Chen a second time.

At 2:57 p.m., more than ten hours after Liera's arrest, Officer Figueroa interrogated Liera for a second time. During the second interrogation, Officer Figueroa asked Liera questions regarding the cell phone found during Liera's arrest. These questions were not asked during the first interrogation. In particular, Officer Figueroa asked Liera if the phone was his and if he was able to access the phone's electronic information using an access code. Liera answered "yes," and entered the phone's access code. Officer Figueroa reviewed the log of received, missed, and outgoing calls and learned that Liera's phone had received three calls from a phone number stored in the phone's internal memory under the name "Pollos." In Spanish slang, "Pollos" (or "chickens") refers to people who are illegally smuggled into the United States. During the interrogation, Liera confirmed that the three calls occurred on February 14 and 15, 2007. Liera also acknowledged that one meaning for "Pollos" was "smuggled aliens." Liera, however, claimed that the "Pollos" entry in his cell phone referred to a friend of his who sold chickens. In closing argument, the government referred to the "Pollos" entry in Liera's cell phone as a "smoking gun."

The chambers of Magistrate Judge Peter Lewis are located at the United States Courthouse in El Centro, California, about fifteen miles from the Calexico West Port of Entry where Liera was arrested. Because Officer Figueroa interrogated Liera for a second time, Liera was not arraigned during Magistrate Judge Peter Lewis's 3:00 p.m. calendar call. Instead, Liera was arraigned at 10:48 a.m. on February 16, 2007, more than thirty hours after his arrest.⁴

Before trial, Liera moved to suppress the statements he made during the second interrogation. The district court denied his motion. In particular, the district court noted that "the delay that led up to the second interrogation ... was justified by the need to get recorded statements from both [Liera] and the material witnesses" and that the delay was "necessary given the failure of the [recording] equipment."

After a two-day jury trial, Liera was convicted of two counts of bringing aliens into the United States for financial gain and aiding and abetting, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2. Liera was also convicted of two counts of bringing aliens into the United States without presentation, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). The district court sentenced Liera to thirty-six months concurrent imprisonment for each of the two financial gain and aiding and abetting counts, and twenty-seven months concurrent imprisonment for each of the two failure to present counts. All four sentences were to run concurrently.

This timely appeal followed.

II. THE DISTRICT COURT'S FAILURE TO SUPPRESS LIERA'S INCRIMINATING STATEMENTS MADE DURING HIS SECOND INTERROGATION

The primary issue here is whether the district court erred by not suppressing the incriminating statements Liera made to law enforcement officers during his second interrogation. Liera argues that any evidence obtained during his second interrogation must be suppressed because of an unnecessary or unreasonable delay under Federal Rule of Criminal Procedure 5(a), 18 U.S.C. § 3501(c), and the McNabb-Mallory Rule. We agree.

A. The McNabb-Mallory Rule, Federal Rule of Criminal Procedure 5(a), and 18 U.S.C. § 3501(c)

We first provide background information regarding the McNabb-Mallory Rule, Federal Rule of Criminal Procedure 5(a), and 18 U.S.C. § 3501(c).

McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957) "generally rende[r] inadmissible confessions made during periods of detention that violat[e] the prompt presentment requirement of [Federal Rule of Criminal Procedure] 5(a)" (the "McNabb-Mallory Rule"). Corley v. United States, ___ U.S. ___, 129 S.Ct. 1558, 1563, 173 L.Ed.2d 443 (2009) (quoting United States v. Alvarez-Sanchez, 511 U.S. 350, 354, 114 S.Ct. 1599, 128 L.Ed.2d 319 (1994)) (alteration in original). Federal Rule of Criminal Procedure 5(a) states that "[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge." Fed.R.Crim.P. 5(a).

In response to the Supreme Court's rulings in McNabb and Mallory, Congress enacted 18 U.S.C. § 3501(c). Section 3501(c) states that "a confession made ... by ... a defendant ..., while ... under arrest ..., shall not be inadmissible solely because of delay in bringing such person before a magistrate judge ... if such confession is found by the trial judge to have been made voluntarily and ... within six hours [of arrest]." 18 U.S.C. § 3501(c). Section 3501(c) also provides that the six-hour "time limitation ... shall not apply in any case in which the delay in bringing [the defendant] before [a] magistrate judge ... 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 judge." 18 U.S.C. § 3501(c).

On April 6, 2009, the Supreme Court reaffirmed the applicability of the McNabb-Mallory Rule in Corley v. United States, 129 S.Ct. at 1563. The Supreme Court held that if a "confession occur[s] before presentment and beyond six hours ... the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed." Id. "[E]ven voluntary confessions are inadmissible if given after an unreasonable delay in presentment" exceeding six hours. Id. at 1563 (citing Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100 (1948)).⁵

Here, it is undisputed that Liera's second interrogation "occurred before presentment and beyond six hours." Id. It is also undisputed that the delay was not a result of the distance needed to travel to the nearest magistrate, since the nearest available magistrate, Magistrate Judge Lewis, was located only fifteen miles away.

Accordingly, our analysis in this case turns on whether delaying Liera's arraignment to conduct a second interrogation "was unreasonable or unnecessary under the McNabb-Mallory cases." Id.

B. Unreasonable or Unnecessary Delay

"We review a district court's finding that a pre-arraignment delay was reasonable for clear error." See United States v. Padilla-Mendoza, 157 F.3d 730,...