Violation of Presentment


Violations of Presentment and the “Working Arrangement” Rule

Federal Rules of Criminal Procedure 5 requires that a defendant be taken “without unnecessary delay before a magistrate judge,” and further, that “[i]f a defendant is arrested without a warrant, a complaint meeting Rule 4(a)'s requirement of probable cause [] be promptly filed in the district where the offense was allegedly committed.” See Fed. R. Crim. P. 5(a)(1)(A) and (b). “The requirement that a defendant be presented to a judge as soon as reasonably practical following his arrest is well-established. The Supreme Court of the United States has consistently held that even voluntary confessions are inadmissible if given after an unreasonable delay in presentment. This exclusionary rule came to be known as the McNabb-Mallory rule, named after the leading cases in which it was applied.” United States v. Fontane-Medina, 2011 U.S. Dist. LEXIS 149051 *46 (S.D. Fla. Nov. 27, 2011) (citing McNabb v. United States, 318 U.S. 332 (1943); Mallory v. United States, 354 U.S. 449 (1957))(emphasis added).

Following the Court's establishment of the McNabb-Mallory rule, Congress enacted 18 U.S.C. § 3501(c). Title 18 U.S.C. § 3501(c) established parameters for a confession made while an individual was under arrest or other detention. It states:

"In any criminal prosecution by the United States or by the District of Columbia, a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer or law-enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate [magistrate judge] or other officer empowered to commit persons charged with offenses against the laws of the United States or of the District of Columbia if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention: Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate or other officer 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 or other officer.:

(emphasis added). The purpose of Rule 5, McNabb-Mallory, and 18 U.S.C. § 3501(c) is to prevent “secret detentions.” See United States v. Corley, 556 U.S. 303 (2009). Individuals must not be detained without charges, and must also promptly be advised of the charges on which they are being held.

In United States v. Corley, FBI Agents took Corley, a suspected bank robber, to the FBI office, which was also the same building as chambers for the nearest Magistrate Judges. See id. at 311. The agents did not bring the defendant before a magistrate judge, but questioned him instead, selling him on the benefits of cooperating, in hopes of getting a confession. After about 9.5 hours, Corley provided an oral confession. He then indicated he was tired, the agents held him overnight, and resumed questioning the next morning. In the morning, Corley provided a written confession. In total, Corley was held for 29.5 before he was presented to a Magistrate Judge. See id.

The Government argued that 18 USC §3501 abrogated McNabb-Mallory entirely, and focused only on whether the confession was voluntary. The Supreme Court rejected the Government's argument and held that Corely's confession was inadmissible because of the delay in presentment. The Supreme Court found that 18 U.S.C. 3501(c) modified McNabb-Mallory, but did not abrogate it. Specifically, the Court said,

"We hold that §3501 modified McNabb-Mallory without supplanting it. Under the rule as revised by §3501 a district court with a suppression claim must find whether the defendant confessed within six hours of arrest (unless a longer delay was “reasonable considering the means of transportation and the distance to be traveled to the nearest available [magistrate judge]”). If the confession came within that period, it is admissible, subject to the other Rules of Evidence, so long as it was “made voluntarily and . . . the weight to be given [it] is left to the jury.” Ibid. If the confession occurred before presentment and beyond six hours, however, 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. at 322 (emphasis added) (citations omitted). 

Notably, in rejecting the Government's argument, the Supreme Court stated, “[w]ithout McNabb-Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, even though ‘custodial police interrogation, by its very nature, isolates and pressures the individual,' inducing people to confess to crimes they never committed. Id. (citing Dickerson v. United States, 530 U.S. 428, 435 (2000). As a policy matter, the Court advised, “[W]e have always known what custodial secrecy leads to. No one with any smattering of the history of 20th-century dictatorships needs a lecture on the subject, and we understand the need even within our own system to take care against going too far.” 320. The Court reiterated that “delay for the purpose of interrogation is the epitome of unnecessary delay.Id. at 309 (internal quotations omitted)(emphasis added).

Further, this right does not disappear overseas. The Constitution restrains the federal government “whenever and wherever the sovereign power of that government is exerted.” Balzac v. Porto Rico, 258 U.S. 298, 312, 66 L. Ed. 627, 42 S. Ct. 343 (1922); see also United States v. Yunis, 859 F.2d 953 *, 1988 U.S. App. LEXIS 14342 (D.C. Cir. 1988) (deciding whether a defendant's Fifth Amendment right was violated overseas, and specifically noting that “…in Bram v. United States, 168 U.S. 532 (1897), the Court excluded a confession from an American trial, notwithstanding that the coercive interrogation was conducted by a foreign police officer in a foreign country.”). Furthermore, in United States v. Bin Laden, the Southern District of New York undertook the §3501(c) and McNabb-Mallory analysis for defendants held overseas. See 132 F. Supp. 2d 198, 208-09 (S.D.N.Y. 2001) (“…the purpose of the rule (to ensure that the federal government does not improperly conspire with other agencies to evade the requirements of Rule 5(a)) seems equally applicable in the international context.”

The “Working Arrangement” Rule

Rule 5, § 3501 (c), and McNabb-Mallory's Constitutional protections do not always require that the defendant either be in federal custody or held on federal charges. See United States v. Bin Laden, 132 F. Supp. 2d at 208-09. It is well-established that, “[F]ederal officials may not collude with [foreign] officers to circumvent federal presentment requirements.” Id at 208 (emphasis added). This is known as the “working arrangement” rule. Id. The “working arrangement” rule was designed to ensure that the federal government does not improperly conspire with local law enforcement to evade the requirements of Rule (5)(a)) Id.

When raising a working arrangement issue, “defendants bear the burden of establishing that [the foreign] custody was improperly used to circumvent the rigors of Rule 5(a). Mere suspicion of a collusive arrangement is insufficient. To satisfy their burden, the Defendants must show that the Government made deliberate use of [the foreign] custody to postpone their presentment requirements.” Id. (emphasis added) (internal citations omitted). If, from an objective appraisal of the surrounding circumstances, it appears that a person is detained in local custody for the purpose of allowing federal officers to obtain a confession before he is taken to a commissioner for arraignment in accordance with Rule 5, the confession is ipso facto inadmissible. See United States v. Chadwick, 415 F.2d 167, 170 (10th Cir. N.M. 1969); see also United States v. Alvarez-Sanchez, 511 U.S. 350, 359-69 (U.S. 1994).

Courts have examined many factors to determine whether a “working arrangement” was present. In Bin Laden, the court examined which authorities brought the charges and which authorities dominated the questioning, (citing United States v. Coppola, 281 F.2d 340, 341 (2d Cir. 1960); United States v. Frank, 8 F. Supp. 2d 284, 298 (S.D.N.Y. 1998) (discussing who “conducted and controlled” the investigation)). In fact, the court stated in Bin Laden, “the early and significant involvement of the Americans in the investigation of these Defendants makes this case a closer ‘working arrangement' call than many others.” United States v. Bin Laden, 132 F. Supp. 2d at 209-210. In addition to examining who conducted the questioning, courts discussed who retrieved and returned the prisoner to and from his cell, whether there were any unconventional actions by the foreign government at the exclusive direction of the foreign government, whether there were foreign charges, and whether there was only nominal local involvement. See United States v. Broadhead, 413 F.2d 1351, 1359 (7th Cir. Ind. 1969); United States v. Bin Laden, 132 F. Supp. 2d at 208-09; United States v. Chadwick, 415 F.2d at 170. For example, in Bin Laden, the court found that the Kenyans controlled the investigation, and because the defendants were being held on Kenyan charges then “the Americans could not reasonably be expected to arrange presentment before a United States magistrate. United States v. Bin Laden, 132 F. Supp. 2d at 208.

In United States v. Abu Ali, 528 F.3d 210  (4th Cir. 2008), the Fourth Circuit touched on this issue in the context of Miranda and assessed whether the Saudi and U.S. Governments were engaged in a “joint venture.” In finding that the two Governments were not engaged in a “joint venture,” the court emphasized several factors. One, the court noted that the defendant was held pursuant to a Saudi government order, two, “the Saudi government refused to accommodate a request by the United States to directly question [the defendant],” and three, the Saudi interrogators also refused to ask seven of the thirteen questions (a majority) submitted by the United States.” Id. at 229 n. 5. Overall, as the court in Bin Laden found, the context makes it clear whether it was the foreign or the U.S. federal government that drove the investigation. See United States v. Bin Laden, 132 F. Supp. 2d at 208-09.

 If you think that your rights have been violated with respect to presentment, it is important that you get an attorney experienced in handling these issues. Contact us now for a free consultation to assess your defenses.

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