United States v. Boche-Perez

Decision Date17 June 2014
Docket NumberNo. 12–40141.,12–40141.
PartiesUNITED STATES of America, Plaintiff–Appellee v. Carmen de Jesus BOCHE–PEREZ, Defendant–Appellant.
CourtU.S. Court of Appeals — Fifth Circuit


Sonah Lee, Assistant U.S. Attorney, U.S. Attorney's Office, Laredo, TX, Terri–Lei O'Malley, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for DefendantAppellant.

Marjorie A. Meyers, Federal Public Defender, Margaret Christina Ling, Assistant Federal Public Defender, Molly Estelle Odom, Esq., Assistant Federal Public Defender, H. Michael Sokolow, Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for DefendantAppellant.

Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.


Carmen De Jesus Boche–Perez (Boche–Perez) appeals from a criminal conviction pursuant to a conditional plea agreement in which he pleaded guilty to knowing possession of child pornography, but reserved the right to appeal the denial of a motion to suppress a series of confessions given to border patrol agents. For the following reasons, we AFFIRM the district court's ruling on the motion to suppress.


Boche–Perez, a lawful permanent resident, was apprehended while entering the United States at the Laredo, Texas, port of entry on Wednesday, October 27, 2010. Customs and Border Patrol (“CBP”) agents initially detained Boche–Perez for inspection at 9 a.m. after an ID check revealed that he was flagged as a suspected narcotics smuggler. Because Boche–Perez had a criminal history, border agents followed procedure and took Boche–Perez to the hard secondary inspection room, where he sat handcuffed to a chair for officer safety. After questioning and holding Boche–Perez in custody, CBP agents determined that Boche–Perez was eligible to enter the country. A final search of Boche–Perez's luggage at approximately 12:40 p.m., though, turned up DVDs containing child pornography. Boche–Perez does not contend that his detainment or the searches leading up to this point were unconstitutional.

Once the CBP agents discovered the DVDs with child pornography, they stopped questioning Boche–Perez and contacted Immigration and Customs Enforcement (“ICE”). An ICE agent arrived at the port at about 1 p.m. At approximately 1:50 p.m., the ICE agent read Boche–Perez his Miranda warnings and began interviewing him regarding the DVDs. Boche–Perez waived his Miranda rights and denied knowing that the DVDs contained child pornography. The interview ended shortly before 3 p.m., at which point the ICE agent contacted an Assistant United States Attorney, who agreed to prosecute Boche–Perez at 3:22 p.m.

The ICE agent then informed Boche–Perez that he was being arrested for possession of child pornography and that he would be transported to the Webb County jail. At that time, however, Boche–Perez still had to be processed for admittance and paroled into the United States. Accordingly, at approximately 4 p.m., a CBP agent interviewed Boche–Perez to process him into the United States. The CBP agent gave Boche–Perez his Miranda warnings again, and after he waived his rights, he confessed at approximately 4:15 p.m. In his confession, Boche–Perez specifically admitted that he knew the DVDs contained child pornography even before they were discovered in his luggage at the border. After the 4:15 p.m. oral confession, the CBP officer began the preparation of a written confession. The CBP officer took from approximately 4:20 p.m. to 5:10 p.m. to prepare the statement. Boche–Perez then reviewed the statement, and signed the written confession at 6 p.m.

At 9 p.m. CBP informed ICE that Boche–Perez had confessed and was ready to be transported to the Webb County Sheriff's office. Before transporting Boche–Perez to jail, however, the ICE agent who had arrested Boche–Perez questioned him again. ICE's second round of questioning elicited statements from Boche–Perez regarding his possession of additional child pornography at his home in Arkansas. The ICE agent gave this information to law enforcement officers in Arkansas and asked them to obtain a search warrant for Boche–Perez's residence. That search subsequently yielded evidence of further child pornography offenses.

Boche–Perez was booked into the Webb County jail at 11:40 p.m. The ICE agent admitted at the suppression hearing that the federal building was less than 15 minutes from the bridge where Boche–Perez was arrested, and that the Government had agreed to prosecute Boche–Perez by 3:22 p.m. on October 27th. The ICE agent further admitted that at 3:22 p.m. he had the information needed to prosecute, and that the criminal complaint would be only two-to-three pages. Nonetheless, Boche–Perez spent two nights in jail, and was presented to the magistrate judge on the morning of Friday, October 29, 2010. According to the ICE agent, the delay occurred because the United States Attorney's office requires the paperwork for an initial appearance to be submitted for approval by 4 p.m. on the day before presentment to the magistrate, and the ICE Agent did not believe he had time to meet the 4 p.m. deadline after only getting the agreement to prosecute at 3:22 p.m.

In ruling on Boche–Perez's motion to suppress, the district court found that he was not presented to the magistrate judge within six hours, but that his statements were voluntary and not a consequence of the delay. Finding that the delay was not created for the purpose of extracting a confession, but rather resulted from delays arising out of administrative processing and the need for coordination across multiple law enforcement agencies, the district court denied Boche–Perez's motion to suppress his statements on the basis of a delay in presentment. The district court also determined that his confessions were voluntary, and that no Miranda violation had occurred.

After the motion to suppress was denied, Boche–Perez entered a conditional guilty plea to knowingly possessing child pornography. Boche–Perez reserved the right to appeal the denial of the motion to suppress. The district court sentenced him to 63 months in prison and to 5 years of supervised release. Boche–Perez timely appealed.


In reviewing a motion to suppress, this court reviews the district court's legal determinations de novo and its factual findings for clear error. United States v. Gonzales, 121 F.3d 928, 938 (5th Cir.1997). We look at the evidence in the light most favorable to the prevailing party, United States v. Lopez–Moreno, 420 F.3d 420, 429 (5th Cir.2005), which here is the Government. A district court's ruling on a motion to suppress may be affirmed on any basis supported by the record. United States v. Ibarra–Sanchez, 199 F.3d 753, 758 (5th Cir.1999).


Boche–Perez challenges (1) the district court's denial of his motion to suppress his three confessions on the basis of an unreasonable delay in presentment, (2) the district court's denial of his motion to suppress his three confessions on the grounds that they were involuntary, and (3) the district court's denial of his motion to suppress his final confession on the basis of a claimed Miranda violation. Boche–Perez's arguments do not succeed.

1) Delay in Presentment

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.” Fed.R.Crim.P. 5(a)(1)(A). Rule 5 codifies the common-law rule of “prompt presentment,” which required that an officer take an arrested person before a magistrate “as soon as he reasonably could.” Corley v. United States, 556 U.S. 303, 306, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009). In 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), the Supreme Court established a remedy for violations of the prompt-presentment requirement: suppression of any confession obtained during a period of unreasonable delay. Corley, 556 U.S. at 309, 129 S.Ct. 1558.

In 1968, Congress modified the McNabb–Mallory framework by enacting 18 U.S.C. § 3501. Section 3501(c) provides that a court may not suppress a confession made during a six-hour safe-harbor period solely due to a delay in presentment if the confession was made voluntarily.1See Corley, 556 U.S. at 322, 129 S.Ct. 1558. Section 3501(c) also permits for an extension of the six-hour safe harbor in any case in which the delay in bringing such a person before a magistrate is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest magistrate. Confessions provided outside § 3501(c)' s safe-harbor, however, remain subject to the McNabb–Mallory exclusionary rule. Id.; see also United States v. Cantu–Ramirez, 669 F.3d 619, 625 (5th Cir.2012).

Because this circuit has yet to address the viability of its pre- Corley case law in cases involving presentment delays that fall outside of the safe harbor, we must first address the implications of Corley.

(A) Effect of Corley on Existing Case Law

This circuit abides by the rule of orderliness, under which a panel of the court cannot overturn a prior panel decision “absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court or by our en banc court.” Technical Automation Servs. Corp v. Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir.2012) (internal quotation marks omitted). [F]or a Supreme Court decision to change our [c]ircuit's law, it must be more than merely illuminating with respect to the case before the court and must unequivocally overrule prior precedent.” Id. at 405 (internal quotation marks and alterations omitted). Our inquiry is whether Corley unequivocally overruled our existing precedent concerning McNabb–Mallory. We hold that it did.


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