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United States of America v. Dhawndric McDowell, No. 10-2543

Sykes, Circuit Judge.

Dhawndric McDowell occasionally worked for the Chicago Police Department (“CPD”) as a confidential informant, but his primary job was selling cocaine for a Mexican drug cartel. One of his suppliers, known to him only as “Jose,” agreed to assist the Drug Enforcement Administration (“DEA”) with a sting.

Under the direction of federal agents, “Jose” arranged to deliver ten kilograms of cocaine to McDowell at a drop point in Chicago. McDowell was arrested at the point of delivery.

Once in federal custody, McDowell announced to the agents that he was an informant for the Chicago police. Because it was after hours and they needed to sort out this claim, the agents asked him if he would be willing to waive his right to prompt presentment before a magistrate judge. See FED. R. CRIM. P. 5(a). McDowell agreed, signed a written Rule 5(a) waiver, and spent the night in jail.

The next morning he signed a Miranda waiver and confessed his involvement in cocaine trafficking. He was taken before a magistrate judge early that afternoon. Based on his confession and other evidence, a jury convicted McDowell of conspiracy and attempted possession of cocaine with intent to distribute.

McDowell argues that the district court should have suppressed his confession under 18 U.S.C. § 3501(c) and the McNabb-Mallory rule because of the delay in his presentment before a magistrate judge. See McNabb v. United States, 318 U.S. 332 (1943).
We reject [this] argument[] and affirm. McDowell knowingly waived his right to prompt presentment under Rule 5(a), so the exclusionary rule of McNabb-Mallory, as modified by § 3501(c), does not apply.

I. Background

McDowell became a confidential informant for the CPD in 2008, but unbeknownst to his “handler,” continued to sell cocaine on the side. In the fall of that year, in an independent investigation, the DEA developed a cooperating source—a high-ranking member of a Mexican cartel who supplied cocaine to Chicago-area dealers, including McDowell. Federal agents thereafter arranged a series of stings using this source.

On December 1, 2008, the supplier—known to McDowell only as “Jose” and whom he had never met—called McDowell to collect on a drug debt. The next day Jose called again and offered McDowell a large quantity of cocaine at $28,500 a kilogram. In this conversation (all these calls were recorded), Jose asked McDowell, “How many [kilograms] do you want me to send you?” McDowell replied, “Whatever you can.” Jose promised ten kilos, and McDowell agreed to meet Jose’s runner that evening to take delivery. Jose directed him to a parking lot next to a Dollar Bazaar store on the west side of Chicago.

At the appointed hour—6 p.m.—McDowell pulled into the Dollar Bazaar parking lot driving a Porsche SUV. An undercover officer approached and asked if he needed “ten,” to which McDowell replied, “Yeah.” (This transaction was audio- and video-recorded.) McDowell popped his trunk and the runner placed a bag containing sham cocaine inside. The runner then sought payment, asking McDowell if he had “something for me.” McDowell replied that he had been told by Jose that “he can get me on the next one.” When McDowell got back in his SUV, officers converged on the scene. DEA agents arrested McDowell … It was approximately 6:30 p.m.

The agents took McDowell to a local police precinct and made him wait in a conference room while they verified his surprising claim that “I work for you.” At 10 p.m. McDowell’s CPD handler arrived and confirmed that McDowell was indeed a CPD informant. But the Chicago officer also told the agents that McDowell was not working under the direction of the CPD at the time of the transaction that led to his arrest.

Because it was after normal business hours, the federal agents asked McDowell if he would waive his right to prompt presentment before a magistrate judge. See FED. R. CRIM. P. 5(a) (“A person making an arrest . . . must take the defendant without unnecessary delay before a magistrate judge . . . .”). He agreed and signed a written Rule 5(a) waiver consenting to forgo his right to be taken before a federal magistrate for a period of up to 72 hours.

McDowell then spent the night in jail. The next morning he was taken to the DEA’s Chicago headquarters. At about 10:50 a.m., he signed a Miranda waiver and began a two-hour interview with federal agents. He admitted that he went to the Dollar Bazaar parking lot to take delivery of ten kilos of cocaine and that he had purchased large quantities of cocaine on 15 to 20 previous occasions from the same supplier, whom he knew as “Jose.” This interview was the first time the agents engaged McDowell in a substantive discussion of his drug-related activities, and it began a little over 16 hours after his arrest. Around 1:30 p.m., approximately 19 hours after his arrest, McDowell was brought before a magistrate judge for his initial appearance.

McDowell was indicted on charges of conspiracy and attempted possession with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)(ii). He moved to suppress his statement, arguing that under 18 U.S.C. § 3501(c), the delay in bringing him before a federal magistrate was unreasonable and the McNabb-Mallory exclusionary rule required suppression. The judge denied McDowell’s suppression motion. The case was tried to a jury, and McDowell was convicted on both counts. The judge sentenced him to 360 months in prison. This appeal followed.

II. Discussion

A. Prompt Presentment

McDowell challenges the district court’s denial of his motion to suppress his statement under § 3501(c) and the McNabb-Mallory rule. We review the court’s findings of fact for clear error and its legal conclusions de novo. United States v. Gibson, 530 F.3d 606, 613 (7th Cir. 2008).

The common-law rule of “prompt presentment” required a law-enforcement officer to take an arrested person before a magistrate “as soon as he reasonably could.” Corley, 556 U.S. at 306. This requirement is codified at Rule 5(a) of the Federal Rules of Criminal Procedure, which provides that “[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge . . . unless a statute provides otherwise.”

In McNabb the Supreme Court established an exclusionary remedy for confessions taken in violation of the common-law prompt-presentment requirement; the Court reaffirmed its McNabb holding in Mallory. Thus, under the rule known as McNabb-Mallory, “an arrested person’s confession is inadmissible if given after an unreasonable delay in bringing him before a judge.” Corley, 556 U.S. at 306.

Congress modified the McNabb-Mallory rule in 1968 with legislation that also responded to the Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966). Corley, 556 U.S. at 309. Congress enacted 18 U.S.C. § 3501 in an effort to override Miranda and mitigate the effects of the McNabb-Mallory rule. Id. Subsections (a) and (b) of the statute address Miranda and are not at issue here. Id.

Subsection (c) addresses the McNabb-Mallory exclusionary rule:
[A] confession made or given by a person . . . while such person was under arrest or other detention in the custody of any law-enforcement officer or lawenforcement agency, 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 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 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).

Subsection (c) thus provides a six-hour “safe harbor” for confessions given before presentment: A confession given within six hours of arrest is admissible notwithstanding a delay in presentment if the judge finds it was voluntary. A confession given outside the six-hour period is also admissible under § 3501(c) if the court finds the confession was voluntary and the delay in presentment was reasonable.

In Corley the Supreme Court explained that in enacting § 3501(c), Congress limited but did not eliminate the McNabb-Mallory exclusionary rule for statements obtained in violation of the Rule 5(a) prompt-presentment requirement. 556 U.S. at 322. The limitation on the rule of McNabb-Mallory is the six-hour safe harbor; beyond that, however, McNabb-Mallory remains intact.  McNabb- Mallory survived § 3501(c) and continues to apply to confessions given before presentment and outside the six-hour statutory window.

McDowell’s confession occurred well beyond § 3501(c)’s six-hour safe harbor. The DEA agents interviewed him more than 16 hours after his arrest and before he was presented to a magistrate judge. Absent a waiver of prompt presentment, this would ordinarily mean that the district court had to “decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases.” Corley, 556 U.S. at 322.

We have said that this inquiry depends on “ ‘a congeries of factors, including such elements as the deterrent purpose of the exclusionary rule, the importance of judicial integrity, and the likelihood that admission of evidence would encourage violations of the Fourth Amendment.’ ” United States v. Mansoori, 304 F.3d 635, 660-61 (7th Cir. 2002).

Here, however, the government took the position that the McNabb-Mallory inquiry was unnecessary because McDowell signed a written waiver of his Rule 5(a) right to prompt presentment. The judge rejected this argument, treating the question whether the delay was “unreasonable” under § 3501(c) as separate and distinct from whether the delay was “unnecessary” under Rule 5(a) and McNabb-Mallory. The judge held that McDowell’s waiver applied only to his right under Rule 5(a) and did not apply to § 3501(c).

This reasoning misunderstands the relationship between Rule 5(a), § 3501(c), and the McNabb-Mallory rule. As we have explained, under Rule 5(a), an arrested person has a right to prompt presentment before a magistrate without unnecessary delay.

Under McNabb- Mallory a confession obtained in violation of the right to prompt presentment must be suppressed if the delay was unreasonable or unnecessary.

Finally, under § 3501(c) law-enforcement officers have a six-hour safe harbor within which to question a suspect before presentment, but the court must apply McNabb-Mallory to a confession made outside the six-hour time limit and before presentment. In other words, the prompt-presentment right is found in Rule 5(a); § 3501(c) and McNabb-Mallory establish the remedial framework for assessing violations of the right.

And like other important rights, the right to prompt presentment may be waived. By signing this waiver, McDowell gave up his right to prompt presentment for the length of time specified in the waiver. By giving up the right to prompt presentment, McDowell necessarily gave up the corresponding remedy of McNabb-Mallory, as modified by § 3501(c).

There is no dispute that McDowell signed the Rule 5(a) waiver knowingly and voluntarily.
McDowell’s voluntary waiver of his Rule 5(a) right therefore eliminated any need for the district court to address the remedial framework of § 3501(c) and McNabb-Mallory. McDowell’s confession was admissible without regard to the delay in presentment.  Where, as here, the defendant waives his Rule 5(a) right, there is no reason for judicial inquiry into whether the delay in presentment was unreasonable or unnecessary under § 3501(c) and McNabb-Mallory.

Although much of its analysis was unnecessary, the district court properly denied McDowell’s suppression motion.

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