United States v. Jacques

United States Court of Appeals
For the First Circuit

No. 12-1016

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL JACQUES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Torruella, Circuit Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.

Brian J. Kelly, by appointment of the court, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

March 11, 2014

*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
 TORRUELLA, Circuit Judge. Following a seven-hour

interrogation in which he confessed participating in the arson of

an African-American church, Michael Jacques was convicted in

federal court of conspiracy against civil rights, damage to

religious real property, and the use of a fire to commit a felony.

On appeal, Jacques argues that the district court erred in

admitting his statements into evidence because agents obtained his

confession through coercive means and in violation of his right to

prompt presentment. For the reasons below, we affirm.

I. Facts and Background

On the morning of November 5, 2008, hours after Barack

Obama was elected to be the next President of the United States,

the Macedonia Church of God in Christ in Springfield,

Massachusetts, burned to the ground. Still in the middle of

construction, the church was being built for a predominantly

African-American congregation. It was approximately 75% complete

at the time of the fire.

The National Response Team for the Bureau of Alcohol,

Tobacco, Firearms, and Explosives (ATF) concluded that the fire was

deliberately set and that gasoline had been used to ignite the

building. It subsequently convened a joint task force with the

Federal Bureau of Investigation (FBI), the Springfield Police

Department, and the Massachusetts State Police (MSP) to investigate

the incident. When a civilian witness notified investigators of

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two men boasting about their involvement in the church arson, the

task force homed in its investigation on Benjamin Haskell and

Michael Jacques.

Soon after receiving the tip, law enforcement officials

arranged to have the civilian witness introduce Haskell to

undercover State Trooper Henot Rivera. Working under the name

"José," Trooper Rivera made three controlled purchases of narcotics

from Haskell, one of which turned out to be a fake bag of heroin.

"José" then told Haskell that he could compensate for the botched

drug deal by helping with a purported insurance scam --

specifically, by burning down a house in Springfield and an

abandoned property in Holyoke, Massachusetts. On January 14, 2009,

while driving to Holyoke to survey the alleged arson site, "José"

encouraged Haskell to describe his credentials as an arsonist. In

a recorded conversation, Haskell confided to Trooper Rivera that he

and Jacques had committed the church arson in November. Armed with

these statements, law enforcement officials intervened and

transported Haskell to a police interview room, where he confessed

to committing the church arson with the help of Jacques and two

other individuals. Haskell agreed to cooperate in the continued

investigation of the church fire.

The following evening, January 15, 2009, the task force

coordinated a meeting between Haskell, Jacques, and Trooper Rivera,

in which "José" invited Jacques to join the insurance scam. Both

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in the presence of Trooper Rivera and during a private conversation

with Haskell, Jacques made incriminating statements concerning his

involvement in the church arson. Jacques's statements were caught

on tape by the task force, which then detained Jacques and

transported him to an interview room for questioning.

Jacques arrived at the MSP's offices in Springfield and

was escorted by agents from the vehicle at 7:16 p.m. His

questioning commenced at approximately 7:20 p.m., when he knowingly

waived his Miranda rights. Jacques's interrogation lasted

approximately six hours and thirty minutes and was videotaped in

its entirety.

The interrogation was conducted primarily by State

Trooper Michael Mazza, although FBI Special Agent Ian Smythe was

present during the first hours and again toward the end of the

questioning. Over the course of the interview, Mazza and Smythe

employed various interrogation tactics from the "Reid technique."1

They exaggerated the strength of the evidence against Jacques,

misrepresented the involvement of high-profile federal agents in

the case, minimized the magnitude of Jacques's alleged criminal

conduct, interrupted Jacques's attempts to deny his guilt, and

suggested that Jacques's continued resistance would subject him to

more damning media coverage. Repeatedly, the agents informed

1
The "Reid technique" is a method of interrogation pioneered by
John E. Reid and Associates, aimed at extracting confessions and
evaluating suspect credibility.

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Jacques that an honest confession might lead to softer treatment by

the prosecutor and the sentencing judge, while a failure to

cooperate was likely to result in the maximum sentence. They also

remarked on the failing health of Jacques's elderly father,

suggesting that continued resistance might deprive Jacques of

crucial years with his family.

Throughout the interview, Jacques was permitted to take

bathroom, water, and cigarette breaks upon request. Having

previously faced charges on several criminal matters, Jacques was

also aware of his right to ask for the interrogation to cease,

although at no point did he do so. He did, however, continue to

deny his involvement in the fire throughout the interrogation,

claiming that his incriminating statements to the undercover

trooper were merely an attempt to make himself "look bigger."

At 1:17 a.m., just under six hours from the time

Jacques's interrogation began and just over six hours from the time

he was taken into custody, Mazza asked Jacques to "sign something

for [him] real quick" and handed Jacques a waiver of his right to

prompt presentment. Mazza read the document aloud and explained

the requirement that a defendant must be arraigned within six hours

of detention. When Jacques asked Mazza to clarify precisely what

he was signing, Mazza replied that the document meant that "you

don't want the questioning to stop and be brought to court or

anything like that, that you're willing to still talk to me."

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Jacques signed the document at roughly 1:20 a.m. Approximately

half an hour later, Jacques took another cigarette break. When he

returned to the interrogation room at around 1:45 a.m., Jacques

admitted his involvement in the church arson. Jacques explained

that he chose to confess because Mazza had "proved" the charges and

"w[as] honest to me."

Jacques was arraigned later that morning. He was

ultimately charged with conspiracy against civil rights in

violation of 18 U.S.C. § 241, damage or destruction to religious

real property in violation of 18 U.S.C. § 247(c), and use of a

fire to commit a felony in violation of 18 U.S.C. § 844(h)(1).

Following his arraignment, Jacques moved to suppress the

incriminating statements made in his confession. Jacques argued

that the confession was involuntary because the agents' coercive

tactics had overborne his will and that his waiver of his right of

presentment was neither timely nor knowing under federal law. The

district court took in abundant briefing and numerous days of

testimony, during which Jacques testified, among other things, that

he understood the nature of his right to presentment and waived

that right to "have a chance to continue explaining" his innocence,

"rather than going into court right away and being charged with a

crime." The district court ultimately denied the motion to

suppress. On April 14, 2011, Jacques was convicted by a jury of

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all three charges. On May 9, 2011, the district court issued a

memorandum explaining its ruling on Jacques's motion to suppress.

Jacques now appeals to this court.

II. Discussion

In considering a challenge to a district court's denial

of a motion to suppress, we review the court's legal conclusions de

novo and its findings of fact for clear error. United States v.

Mejía, 600 F.3d 12, 17 (1st Cir. 2010). The voluntariness of a

defendant's confession is a question of law meriting de novo

review. United States v. Hughes, 640 F.3d 428, 438 (1st Cir.

2011).

A. Coercive Interrogation

The Fifth Amendment right against self-incrimination

prohibits courts from admitting into evidence a defendant's

involuntary confession. Dickerson v. United States, 530 U.S. 428,

433 (2000). In assessing whether a confession is voluntary, courts

must inquire "whether the will of the defendant had been overborne

so that the statement was not his free and voluntary act." Bryant

v. Vose, 785 F.2d 364, 367-68 (1st Cir. 1986) (quoting Procunier v.

Atchley, 400 U.S. 446, 453 (1971)). We determine the voluntary

nature of the statements by considering "the totality of the

circumstances, including both the nature of the police activity and

the defendant's situation." Hughes, 640 F.3d at 438. Relevant

considerations include the length and nature of the questioning,

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promises or threats made by investigators, and any deprivation of

the suspect's essential needs. Id. They also include the

defendant's personal circumstances, including his age, education,

intelligence, and mental condition, id., as well as his prior

experience with the criminal justice system, see United States v.

Jackson, 608 F.3d 100, 103 (1st Cir. 2010); United States v.

Rojas-Tapia, 446 F.3d 1, 8 (1st Cir. 2006). A defendant's calm

demeanor and the lucidity of his statements weigh in favor of

finding his confession voluntary. Rojas-Tapia, 446 F.3d at 8.

Numerous facts in the record indicate that Jacques

provided his confession knowingly and voluntarily. A defendant in

multiple criminal matters in the past, Jacques was experienced with

the justice system. Throughout the interrogation and his

subsequent confession, Jacques remained calm and provided a level-

headed account of his involvement in the arson. His decision to

confess was not a sudden or immediate response to any of the

agents' questions or threats, indicating the agents' coercive

impact, but rather came after a cigarette break during which

Jacques was relieved of all interrogation. Perhaps most

importantly, Jacques himself explained his decision to confess

based on his belief that Mazza had "proved" the allegations and had

been "honest" with him.

In the face of this evidence, Jacques claims that Mazza

and Smythe's coercive interrogation techniques overbore his will in

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violation of the Fifth Amendment. We find that none of the

allegedly coercive tactics identified by Jacques, either

individually or together, suffice to show that Jacques's confession

was involuntary.

1. Threats of Retaliation

It is well settled in the First Circuit that an officer

does not impermissibly overbear a defendant's will by promising to

bring the defendant's cooperation to the prosecutor's attention or

by suggesting that cooperation may lead to more favorable

treatment. See, e.g., United States v. Baldacchino, 762 F.2d 170,

179 (1st Cir. 1985); see also Jackson, 608 F.3d at 103. While the

rules governing an agent's threats of harsher punishment in

exchange for a defendant's failure to cooperate is less settled,

this court has held that threats of retaliation are just one factor

relevant to evaluating the voluntariness of a confession. United

States v. Jackson, 918 F.2d 236, 242 (1st Cir. 1990) ("Congress and

the courts have indicated that to determine voluntariness it is

necessary to look at the totality of the circumstances, including

any promises or threats made by police officers or the prosecution,

in order to see whether the will of the accused was overborne.");

see also United States v. Martin-Ramírez, No. CR-08-220-E, 2009 WL

928103, at *5 (D. Idaho Apr. 2, 2009) ("[I]f a defendant has had no

previous experience with criminal law coupled with facts that she

was threatened with adverse consequences for lack of cooperation

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and had no friend or advisor during the time of confession, are

factors that should be considered in determining whether a

defendant's confession was voluntary."). Accordingly, federal

courts considering the totality of the evidence have repeatedly

found that an interrogator's threats of a harsher prison sentence

if a defendant failed to cooperate did not suffice to overbear the

defendant's will. See, e.g., United States v. Jenkins, 214 F.

App'x 678, 680 (9th Cir. 2006) (finding that, "[i]n the absence of

other coercive pressures," an agent's statements that "he would

advise the prosecutor if William cooperated or if he refused to

cooperate" "do not entail the conclusion that William's statements

were involuntary"); United States v. Meirovitz, 918 F.2d 1376, 1379

(8th Cir. 1990) (finding a confession voluntary where agents

offered "threats of a long prison sentence if [the defendant]

failed to cooperate," but no evidence showed that defendant was

"especially susceptible to police pressure").

Jacques points to a series of Ninth Circuit cases

suggesting that an agent's threats of retaliation automatically

render an ensuing confession involuntary. See United States v.

Casillas, 538 F. App'x 751, 751-52 (9th Cir. 2013) ("We have

repeatedly found that a threat of harsher treatment renders any

subsequent confession involuntary."); United States v. Harrison, 34

F.3d 886, 891-92 (9th Cir. 1994) ("[T]here are no circumstances in

which law enforcement officers may suggest that a suspect's

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exercise of the right to remain silent may result in harsher

treatment by a court or prosecutor."); see also United States v.

Melnikas, 929 F. Supp. 276, 281 (S.D. Ohio 1996) ("Threatening to

inform the court or a prosecutor of a suspect's refusal to

cooperate in order to elicit such cooperation violates an

individual's Fifth Amendment right to remain silent and is clearly

coercive."). This is not the prevailing rule in our circuit.

Furthermore, even the Ninth Circuit has more recently qualified

that its "disapprov[al] . . . of an interrogator's threats to tell

the prosecutor about a defendant's refusal to cooperate . . . does

not amount to a categorical rule." Jenkins, 214 F. App'x at 680

(citations omitted). In greater harmony with our own rule, the

Ninth Circuit's cases holding that an agent's threats of

retaliation violated the Fifth Amendment involved significant

additional indicia of coercion. See, e.g., Harrison, 34 F.3d at

892 (finding a defendant's confession involuntary where the

defendant "broke her silence only after the agent asked whether she

thought it preferable if the judge were informed that she had

cooperated or not cooperated," indicating a strong coercive

impact); United States v. Tingle, 658 F.2d 1332, 1336 (9th Cir.

1981) (finding a defendant's confession involuntary where the

agents threatened to communicate her lack of cooperation to the

prosecutor and warned that defendant would not see her two-year old

child "for a while").

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 In this case, there is no evidence suggesting that Mazza

and Smythe's threats of a harsher sentence in exchange for

Jacques's refusal to cooperate had any meaningful impact on

Jacques's conduct during the interrogation. Unlike prior cases

where agents' threatening or manipulative statements inspired

demonstrable anxiety in the defendants, see, e.g., Tingle, 658 F.2d

at 1334, Mazza and Smythe repeated their threats numerous times

over the course of a six hour interrogation without any

identifiable effect on Jacques. Similarly, unlike previous

defendants who explicitly identified the threat of retaliation as

their reasons for confessing, see, e.g., Harrison, 34 F.3d at 892,

Jacques explained his decision to confess without reference to any

of the agents' alleged threats. While these threats are certainly

relevant to a determination of voluntariness, in light of the

entire record they fail to establish that Jacques's will was

overborne.

2. Preying on Family Feeling

This circuit recognizes that psychological duress may

suffice to overbear a defendant's will so as to make subsequent

statements inadmissible. Jackson, 608 F.3d at 102-03. Accordingly,

statements that a defendant's refusal to cooperate may lead to an

extended separation from his or her loved ones may contribute to a

finding that the defendant's confession was coerced. See, e.g.,

Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (finding the

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defendant's confession involuntary where "the petitioner's oral

confession was made only after the police had told her that state

financial aid for her infant children would be cut off, and her

children taken from her, if she did not 'cooperate,'" among other

factors); Tingle, 658 F.2d at 1336 (finding confession involuntary

where agents made defendant "fear that, if she failed to cooperate,

she would not see her young child for a long time").

However, the mere fact that a defendant is placed "under

some psychological pressure" by agents does not necessarily render

a confession involuntary. United States v. Jobin, 535 F.2d 154,

159 (1st Cir. 1976). In Jackson, for example, this circuit refused

to find that a defendant's confession was involuntary on the basis

of police officers' threats to charge his sister with a crime if he

did not cooperate. 918 F.2d at 242. Distinguishing Lynumn and

Tingle, we noted that those earlier cases involved "mothers . . .

coerced by threats that their children would be taken from them"

and included evidence that the defendants "may have been more

susceptible to psychological coercion" than other suspects. Id.;

cf. Tingle, 658 F.2d at 1336 (emphasizing the "primordial and

fundamental" relationship of a mother to her child). Absent

evidence that the defendant in Jackson had "an especially close

relationship" with his sister or "was unusually susceptible to

psychological coercion on that account or any other," we found that

the "totality of the circumstances" failed to suggest that his will

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was overborne. Jackson, 918 F.2d at 242; see also United States v.

Charlton, 565 F.2d 86, 89 (6th Cir. 1977) (finding that the

defendant's confession was voluntary despite agents' threats to

arrest his son, of whom defendant "was highly protective," because

a desire to protect a relative "does not, in our judgment, render

his confession involuntary or necessitate a finding that he was

coerced").

In this case, Agent Mazza made a single reference to

Jacques's father's health several hours before Jacques decided to

confess. Jacques's demeanor at the time of his confession did not

manifest any notable psychological or emotional anxiety in response

to Mazza's statement, nor does the record include any indicia that

Jacques was particularly susceptible to manipulation. Under the

totality of the circumstances, the record does not suggest that

Mazza's appeal to Jacques's family feeling had a coercive impact on

the defendant's confession.

3. Other Claims

Finally, Jacques claims that Mazza and Smythe overbore

his will through their use of the "Reid technique," including

exaggerating their evidence and minimizing the gravity of his

suspected offense, in obtaining a confession.

Extreme forms of deception or chicanery by the police may

be sufficient to render a confession involuntary. Hughes, 640 F.3d

at 439. Nevertheless, "the use of chicanery does not automatically

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undermine the voluntariness of a confession." Id. This court has

consistently recognized that "some degree of deception . . . during

the questioning of a suspect is permissible." Id.; see also United

States v. Boskic, 545 F.3d 69, 79 (1st Cir. 2008) (reaffirming "the

proposition . . . that 'confessions procured by deceits have been

held voluntary in a number of situations'") (quoting United States

v. Byram, 145 F.3d 405, 408 (1st Cir. 1998)).

Specifically, "a confession is not considered coerced

merely because the police misrepresented to a suspect the strength

of the evidence against him." Clanton v. Cooper, 129 F.3d 1147,

1158 (10th Cir. 1997); see also Frazier v. Cupp, 394 U.S. 731, 739

(1969) (finding that the police's "misrepresent[ations]" of a

co-defendant's alleged incriminating statements were, "while

relevant, insufficient in our view to make this otherwise voluntary

confession inadmissible."); Holland v. McGinnis, 963 F.2d 1044,

1051 (7th Cir. 1992) (finding "the fact that the officer

misrepresented . . . the strength of the evidence" to be "one

factor to consider among the totality of circumstances in

determining voluntariness"); Green v. Scully, 850 F.2d 894, 903 (2d

Cir. 1988) (finding police officer's "assert[ion] that he already

had a strong case against petitioner" insufficient to render the

ensuing confession involuntary). As the Seventh Circuit has noted,

"[o]f the numerous varieties of police trickery, . . . a lie that

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relates to a suspect's connection to the crime is the least likely

to render a confession involuntary." Holland, 963 F.2d at 1051.

In this case, the agents' statements exaggerating the

quality of their evidence, minimizing the gravity of Jacques's

offense, and emphasizing the negative media attention that would

attend Jacques's trial all fall safely within the realm of the

permissible "chicanery" sanctioned by this and other courts.

Jacques points to no federal authority supporting a finding of an

involuntary confession under similar circumstances. The one case

cited by Jacques, Commonwealth. v. Baye, 967 N.E.2d 1120 (Mass.

2012), is a state court decision that is neither binding on this

court nor directly analogous on the facts. See id. at 1130 (noting

in support of its finding that the agents "mischaracterized the law

of murder, felony-murder, and accident" and "dissuaded" the

defendant when he asked to consult an attorney). Considered in the

full circumstances of this case, Mazza and Smythe's interrogative

tactics did not amount to coercion in violation of Jacques's Fifth

Amendment rights.

B. Right to Prompt Presentment

Jacques further challenges the admissibility of his

confession on the ground that his interrogation violated his right

to prompt presentment.

Under the Federal Rules of Criminal Procedure, a

defendant who has been arrested within the United States is

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entitled to be brought "without unnecessary delay before a

magistrate judge." Fed. R. Crim. P. 5(a)(1)(A). The right of

speedy presentment not only checks the likelihood of coercive

questioning, but also avoids "all the evil implications of secret

interrogation of persons accused of crime." Corley v. United

States, 556 U.S. 303, 307 (2009) (quoting McNabb v. United States,

318 U.S. 332, 344 (1943)). Presentment is "the point at which the

judge is required to take several key steps to foreclose Government

overreaching: informing the defendant of the charges against him,

his right to remain silent, his right to counsel, the availability

of bail, and any right to a preliminary hearing; giving the

defendant a chance to consult with counsel; and deciding between

detention or release." Id. at 320. To protect this right, the

McNabb-Mallory rule established by the Supreme Court stipulates

that confessions made during a period of detention that violates

the prompt presentment requirement of Rule 5(a) are generally

inadmissible in federal courts. Id. at 309; United States v.

Alvarez-Sanchez, 511 U.S. 350, 354 (1994).

Following the Supreme Court's articulation of the

McNabb-Mallory exclusionary rule, Congress enacted 18 U.S.C. § 3501

to create a safe harbor period for certain voluntary confessions.

See Corley, 556 U.S. at 309 (discussing legislative history and

intent of § 3501). With respect to Rule 5(a)'s requirement of

speedy presentment, § 3501(c) provides that "a confession . . .

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shall not be inadmissible solely because of delay in bringing such

person before a magistrate judge or other officer . . . if . . .

such confession was made or given by such person within six hours

immediately following his arrest or other detention." 18 U.S.C.

§ 3501(c). The section further provides that its six-hour cut-off

"shall not apply in any case in which the delay in bringing such

person before such magistrate judge . . . 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 or other officer." Id.

Jacques signed a waiver of his right to prompt

presentment at 1:20 a.m., four minutes past § 3501(c)'s safe harbor

period. He now contends that, because his waiver was untimely

under § 3501(c), his subsequent confession is inadmissible under

McNabb-Mallory. Specifically, Jacques insists that the delay

cannot be deemed "reasonable" because § 3501(c) recognizes an

exception to its six-hour window only for delays caused by

transportation or travel considerations, neither of which apply to

this case.2

Jacques's argument misconstrues the significance of

§ 3501(c)'s safe harbor. Section 3501(c) does not provide that all

2
The parties additionally dispute whether Jacques was within
"federal custody" during his interrogation so as to trigger the
application of 18 U.S.C. § 3501(c). Because we can resolve
Jacques's challenge based on the reasonableness of the four-minute
delay, we need not reach this issue.

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confessions gathered beyond its six-hour window automatically or

even presumptively violate Rule 5(a)'s right of presentment

"without unnecessary delay." Fed. R. Crim. P. 5(a)(1)(A). Rather,

it sets up a two-part inquiry for that right. First, the section

creates a safe-harbor for voluntary statements that are received

either within six hours of a defendant's detention, or within a

longer period deemed reasonable in light of travel or

transportation difficulties. Corley, 556 U.S. at 322 ("If the

confession came within that period, it is admissible . . . .").

Where a voluntary confession falls beyond the safe harbor,

§ 3501(c) then requires a court to determine whether the delay was

nevertheless reasonable or necessary under McNabb-Mallory. Id.

("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."); United States v.

McDowell, 687 F.3d 904, 909 (7th Cir. 2012) ("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.").

The right of prompt presentment does not create a

"mechanical or automatic" duty for officers to arraign defendants

upon arrest. Mallory v. United States, 354 U.S. 449, 455 (1957).

Rather, "[c]ircumstances may justify a brief delay" where that

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delay is based on reasonable or legitimate grounds. Id. A delay

"is unreasonable and unnecessary when it is 'of a nature to give

opportunity for the extraction of a confession.'" United States v.

García-Hernández, 569 F.3d 1100, 1106 (9th Cir. 2009) (quoting

Mallory, 354 U.S. at 455). However, a delay may be reasonable if

caused by administrative concerns, such as the unavailability of a

magistrate following an arrest, see, e.g., id. at 1106; see also

United States v. Carter, 484 F. App'x 449, 457-58 (11th Cir. 2012),

cert. denied, 133 S. Ct. 994 (2013), or by a shortage of personnel,

García-Hernández, 569 F.3d at 1106; United States v. Salamanca, 990

F.2d 629, 633 (D.C. Cir. 1993). Furthermore, a purely de minimis

delay past § 3501(c)'s six-hour limitation may not necessarily

raise any procedural concerns. See United States v. Oropeza-Flores,

230 F.3d 1368 (9th Cir. 2000).

Based on the circumstances of this case, Agent Mazza's

brief delay in acquiring Jacques's waiver of his right to

presentment was not "unreasonable and unnecessary" so as to merit

suppression of his statements under McNabb-Mallory.3 Assuming that

3
The government also suggests that § 3501(c)'s six-hour
limitation on an interrogation prior to presentment does not apply
to a defendant's waiver. By the government's theory, while the
prosecution may not introduce any statements made between the
termination of the six-hour safe harbor and the defendant's waiver
of his right to presentment, it can rely on any statements made
following a knowing waiver, no matter when the waiver occurred.
This argument would drain the right of prompt presentment of any
substance. A necessary extension of the government's theory is
that federal agents could interrogate a defendant for six hours and
then, instead of bringing him before a magistrate, detain him for

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Jacques's detention began the moment he was escorted from the

vehicle at 7:16 p.m., Mazza presented Jacques with a waiver one

minute past the six-hour window and Jacques signed that waiver four

minutes past that window. The extremely minor margin by which

Mazza exceeded the safe harbor and his prompt break in questioning

until Jacques signed the waiver suggest that Mazza did not

purposefully ignore § 3501(c) for the improper goal of continuing

an unrestricted interrogation. Nor, considering the unavailability

of a magistrate judge at the time of Jacques's interrogation, do

the circumstances suggest that Mazza willfully defaulted on his

hours or days longer in the hopes that he will eventually choose to
waive presentment and continue the interrogation. Such a practice
would avoid all the established procedural benefits of presentment,
including "informing the defendant of the charges against him, his
right to remain silent, his right to counsel, the availability of
bail, and any right to a preliminary hearing." Corley, 556 U.S. at
320.

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duty to take Jacques for prompt arraignment.4 More likely, they

suggest a minor and ultimately harmless miscalculation of the time.

Finally, Jacques argues that his waiver is invalid

because it was not obtained knowingly, intelligently, and

voluntarily. See McDowell, 687 F.3d at 910 (noting that a waiver

of prompt presentment must be knowing and voluntary).

Specifically, Jacques insists that Agent Mazza misrepresented the

nature of his Rule 5(a) rights by suggesting that the waiver would

help Jacques by forestalling charges, while it in fact benefitted

the investigators by allowing them to continue interrogation. This

argument finds no support in the record. The transcript of the

interrogation reveals that Mazza accurately explained the contours

of Jacques's right to presentment, including the opportunity to

come before a judge, to have counsel appointed him, and to be

admitted to bail. Jacques's testimony at his suppression hearing

4
Jacques insists that the unavailability of a magistrate cannot
be used to justify prolonging an interrogation. Taken to its
extreme, he notes, the practice would allow agents to circumvent
§ 3501(c) at any time by arresting suspects at night or over
weekends. See United States v. Middleton, 344 F.2d 78, 82 (2d Cir.
1965) ("[T]he unavailability of a Commissioner does not license the
police to continue their interrogation through the night."). Unlike
Middleton, however, this situation is not one where agents took the
unavailability of a magistrate as an excuse to "continue their
interrogation through the night." Rather, it is one where agents
properly informed Jacques of his right to terminate the
interrogation and presented him with a formal waiver when their
six-hour safe harbor expired. In consideration of the record, the
agents' minor miscalculation does not constitute an unnecessary and
unreasonable delay in violation of Jacques's right to prompt
presentment.

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confirmed that, as a veteran of the criminal justice system, he was

familiar with the right of presentment. Furthermore, Jacques

admitted that he chose to sign the waiver to "have a chance to

continue explaining" his innocence in order to dissuade the agents

from filing formal charges against him. Based on Jacques's

testimony, the district court did not err in concluding that

Jacques's waiver was knowing, intelligent, and voluntary.

III. Conclusion

For the foregoing reasons, the decision of the district

court is affirmed.

Affirmed.

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