Appeal from the United States District Court for the Central District of California. D.C. No. CR-88-0671-CBM. Consuelo B. Marshall, District Judge, Presiding.
Before: Dorothy W. Nelson and Stephen Reinhardt, Circuit Judges, and Edward Dean Price,*fn* Senior District Judge. Opinion by Judge Reinhardt; Dissent by Senior District Judge Price.
REINHARDT, Circuit Judge:
The defendant, Pedro Alvarez-Sanchez, was convicted after a jury trial of possession of counterfeit government obligations in violation of 18 U.S.C. § 472. During the trial, the government introduced in evidence a confession obtained while the defendant was in custody. The defendant had moved to suppress his confession on the ground that it was inadmissible under 18 U.S.C. § 3501 due to the delay between his arrest and arraignment. The district court denied the defendant's motion, and he appeals that denial. We review de novo the district court's decision to admit the confession. See United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1048 (9th Cir. 1990); United States v. Wilson, 838 F.2d 1081, 1085-86 (9th Cir. 1988). We reverse and remand.
The facts, as found by the district court in its denial of the defendant's suppression motion, are relatively simple. On Friday, August 5, 1988, Alvarez-Sanchez was arrested by Los Angeles Sheriff's deputies on narcotics charges during the execution of a search warrant on his residence. During the search, the deputies recovered $2,260 in counterfeit money; the Secret Service was notified. Although the state never pursued any narcotics or other prosecution against Alvarez-Sanchez, he remained in state custody throughout the weekend. On Monday, August 8, 1988, while still in state custody, Alvarez-Sanchez was interviewed by federal agents, one of whom was apparently fluent in Spanish. After agreeing to waive his Miranda rights, Alvarez-Sanchez confessed to knowing possession of the counterfeit money. Later that afternoon, the federal agents took custody of the defendant, and the next morning, Tuesday, August 9, he was arraigned before a federal magistrate.
The defendant argues that his confession was inadmissible because it was obtained during a period of unreasonable pre-arraignment delay. Rule 5(a) of the Federal Rules of Criminal Procedure requires that an arrested person be arraigned before a magistrate "without unnecessary delay." The right to a speedy arraignment codified in Rule 5(a) has been recognized to serve at least three important interests; it: (1) "protects the citizen from a deprivation of liberty as a result of an unlawful arrest by requiring that the Government establish probable cause," (2) "effectuates and implements the citizen's constitutional rights by insuring that a person arrested is informed by a judicial officer" of those rights, and (3) "minimizes the temptation and opportunity to obtain confessions as a result of coercion, threats, or unlawful inducements." 113 Cong.Rec. 36,067 (1967); see also McNabb v. United States, 318 U.S. 332, 343, 87 L. Ed. 819 , 63 S. Ct. 608 (1943) ("The purpose of this impressively pervasive requirement of criminal procedure [that of prompt arraignment] is plain. . . . The awful instruments of the criminal law cannot be entrusted to a single functionary."). Alvarez-Sanchez's case presents us with the problem of determining the circumstances under which the failure to arraign an arrestee within a reasonable time should result in the suppression of his confession.
Nearly fifty years ago, the Supreme Court determined that one appropriate remedy for violations of Rule 5(a) is to suppress confessions obtained during an unnecessary delay in arraignment. See McNabb, 318 U.S. at 341. In a line of decisions culminating in Mallory v. United States, 354 U.S. 449, 1 L. Ed. 2d 1479 , 77 S. Ct. 1356 (1957), the Supreme Court adopted a general exclusionary rule that rendered inadmissible all confessions obtained during a detention in violation of Rule 5(a). This rule was not as severe as it seemed, however, as not all delays in arraignment violate Rule 5(a) - only "unnecessary delays." As long as the delay was reasonable, it did not violate Rule 5(a). See, e.g., Muldrow v. United States, 281 F.2d 903, 905 (9th Cir. 1960); Williams v. United States, 273 F.2d 781, 798 (9th Cir. 1959), cert. denied, 362 U.S. 951, 4 L. Ed. 2d 868 , 80 S. Ct. 862 (1960). Suppression was required only "when the federal officers cannot justify their failure to promptly bring the accused before a committing magistrate, or when the federal officers delay arraignment in order to obtain evidence from the accused." Cote v. United States, 357 F.2d 789, 794 (9th Cir.), cert. denied, 385 U.S. 883, 17 L. Ed. 2d 110 , 87 S. Ct. 173 (1966); see also Smith v. United States, 390 F.2d 401, 403 (9th Cir. 1968). The rule was clear, however, with regard to delays deliberately incurred in order to allow investigating officers time to interrogate the accused - any confession obtained would have to be suppressed. See Upshaw v. United States, 335 U.S. 410, 414, 93 L. Ed. 100 , 69 S. Ct. 170 (1948).
The continued vitality of the McNabb-Mallory remedy for Rule 5(a) violations was made uncertain, however, when in 1968 Congress enacted statutory provisions regarding the admissibility of confessions in federal criminal prosecutions, which provisions are codified at 18 U.S.C. § 3501 and the text of which is set out in the margin.*fn1 One of the purposes of this enactment was to limit the McNabb-Mallory rule by allowing certain pre-arraignment confessions to be admitted notwithstanding the presence of a Rule 5(a) violation. See United States v. Halbert, 436 F.2d 1226, 1231 (9th Cir. 1970). Unfortunately, the text of § 3501 is confusing and has given rise to uncertainty and disagreements among the circuits over the proper application of the provision. See United States v. Perez, 733 F.2d 1026, 1034 (2d Cir. 1984) (discreetly describing interpretation of the act as "somewhat murky"). The degree to which the operation of the McNabb-Mallory rule has been curtailed is unquestionably not clear from the plain language of the statute.
Two sections of § 3501, sections (a) and (c), appear to address the role of pre-arraignment delay in determining the admissibility of confessions obtained during such delay.*fn2 The most elaborate, and pertinent, is § 3501(c). That section states that a confession obtained during a pre-arraignment detention "shall not be inadmissible solely because of delay in [arraignment] 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." The clear effect of this provision is to create a six-hour "safe harbor" during which a confession will not be excludable on the basis of the McNabb-Mallory rule. The section also provides that the permissible time for arraignment is extended "in any case in which the delay in [arraignment] 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." Section 3501(c) is designed to allow the McNabb-Mallory rule to operate only when the delay in arraignment exceeds the greater of six hours or the time deemed reasonable by the court in light of the available means of transportation and the distance to the nearest magistrate. See Perez, 733 F.2d at 1031. Another way of putting it is that § 3501(c) modified the right to speedy arraignments so that delays of less than six hours or delays that are necessary in light of the logistics involved should be considered reasonable per se, but left unaltered the McNabb-Mallory requirement that all confessions given during an unreasonable delay in arraignment should be suppressed.
The other section that appears to affect the McNabb-Mallory rule is § 3501(a). This section states that "if the trial Judge determines that the confession was voluntarily made it shall be admitted in evidence." If, as this language suggests, the section renders the admissibility of a confession dependent only on its voluntariness, then the McNabb-Mallory rule is eliminated entirely. Although a prolonged detention prior to a confession may weaken a person's will and thereby render a confession involuntary, delay in arraignment (which includes both pre- and post-confession delay) does not necessarily affect the voluntariness with which a confession is given. Further, because involuntary confessions are rendered inadmissible by the Constitution regardless of any additional Rule 5(a) violation, see, e.g., Blackburn v. Alabama, 361 U.S. 199, 206-07, 4 L. Ed. 2d 242 , 80 S. Ct. 274 (1960), McNabb-Mallory would be purely superfluous. In short, § 3501(a) literally construed would make delay in arraignment that violates Rule 5(a) irrelevant to the admissibility of a confession.
Section 3501 is one of the many statutes, however, which provide strong evidence of the truth of Judge Learned Hand's simple aphorism that "there is no surer way to misread any document than to read it literally." Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944) (Hand, J., Concurring), aff'd, 324 U.S. 244 (1945); see also United States v. Monia, 317 U.S. 424, 431, 87 L. Ed. 376 , 63 S. Ct. 409 (1943) (Frankfurter, J., Dissenting) ("The notion that because the words of a statute are plain, its meaning is also plain, is merely pernicious oversimplification."). The difficulty with construing § 3501(a) literally - aside from the obvious problem that it would leave violations of speedy arraignment rights remediless - is that to do so would create a clear conflict with § 3501(c) and would render the latter section meaningless. According to section (c), a court is forbidden to suppress a confession solely on the basis of pre-arraignment delay only when the confession is given within six hours of arrest or when the delay in arraignment is due to the distance to the nearest magistrate. But a literal reading of section (a) forbids a court to suppress a confession solely on the basis of pre-arraignment delay under all circumstances. As the Second Circuit has noted, such a construction of section (a) "reads subsection (c) out of the statute." Perez, 733 F.2d at 1031; see also United States v. Erving, 388 F. Supp. 1011, 1016 (W.D.Wis. 1975).
Courts must not make a fetish of construing statutes in a literal fashion. Our role is not that of super-grammarian obsessed with the plain meaning of language but rather that of perceptive diviner of congressional intent. See Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1453 (9th Cir. 1992). In such a role, if possible, "effect shall be given to every clause and part of a statute." D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208, 76 L. Ed. 704 , 52 S. Ct. 322 (1932). Thus, the Supreme Court has held that a court should reject the literal interpretation of a section of an enactment when that interpretation would render a different section meaningless. See Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 250, 86 L. Ed. 2d 168 , 105 S. Ct. 2587 (1985). Accordingly, we reject a literal interpretation of § 3501(a) - in light of the provisions of § 3501(c), there must be circumstances in which delay in arraignment will require suppression of a confession regardless of the voluntariness of the confession. See Perez, 733 F.2d at 1032; United States v. Manuel, 706 F.2d 908, 913 (9th Cir. 1983) ("Section 3501(c), by implication, provides that unreasonable pre-arraignment delay can provide the sole basis for a finding of involuntariness, if the delay exceeds six hours."). The next question, of course, is - what circumstances?
We begin our analysis of the question by reviewing the approaches to § 3501 adopted by other circuits. Although all the opinions we have reviewed consider pre-arraignment delay in determining the admissibility of confessions, the methods by which the circuits perform this function can be divided into two distinct categories. One category involves constructions that attempt to harmonize sections (a) and (c) by expanding the meaning of the term "voluntary" as used in section (a) to include consideration of a factor unrelated to free will - specifically, pre-arraignment delay. The other category involves constructions that recognize that sections (a) and (c) were addressed to different matters - the former to concerns regarding the confessor's free will and the implementation of Miranda, and the latter to concerns regarding delay in arraignment and the implementation of McNabb- Mallory. While the former approach understandably tends to create confusion regarding the purpose of the two sections, the latter permits them to be analyzed separately and coherently.
The most primitive version of the first approach - the "expanded voluntariness" category - has been adopted by the Sixth Circuit, which resolved the conflict between sections (a) and (c) by holding simply that "[unnecessary delay] is one of five relevant factors which the trial Judge must consider in determining voluntariness." United States v. Mayes, 552 F.2d 729, 734 (6th Cir. 1977). The resolution is puzzling, however, because the court also stated that "unnecessary delay, in and of itself, is not sufficient to justify suppression of an otherwise voluntary confession under 18 U.S.C. § 3501(a)." Id. As explained above, the absolute bar on suppressions based solely on delays in arraignment, as adopted by the Sixth Circuit, conflicts with section (c)'s command that a confession not be suppressed "solely because of delay in [arraignment]" if the confession falls within the six hour safe harbor. The Sixth Circuit's approach does, however, have the superficial benefit of apparent obedience to § 3501(a)'s command that voluntariness be the touchstone of admissibility under that section.
Yet, this obedience is nothing more than apparent; it makes "voluntariness" the touchstone only by distorting the meaning of that term. As we have already noted, the delay in arraignment (as opposed to the delay during the pre-confession period) is irrelevant to the determination whether the confession was given with a free will. Worse still, in assessing "voluntariness," Mayes insists upon a consideration only of unnecessary delay. The reasons for the delay - whether the delay was necessary or unnecessary - have no bearing, of course, on the confessor's state of mind. See Perez, 733 F.2d at 1031 ("The government's excuses for the delay have no logical or legal relevance to the defendant's voluntariness [in giving the confession]."); United States v. Shoemaker, 542 F.2d 561, 563 (10th Cir.), cert. denied, 429 U.S. 1004, 50 L. Ed. 2d 616 , 97 S. Ct. 537 (1976).
Notwithstanding the provisions of section (b), the problem with expanding the definition of voluntariness to include delay in arraignment is that it provides no guidance in determining how the delay is to be weighed: to order a court to consider unnecessary delay in arraignment in determining the voluntariness of a confession is to command it to engage in a wholly non-rational exercise. Because delay in arraignment (or at least the post-confession portion of that delay) does not affect the confessor's free will, a court must make explicit the purpose other than protecting that free will that is being served by suppression, at least if it is to engage in a principled analysis. When a court examines pre-arraignment delay and continues to insist that its determination is based solely on voluntariness, its explanation can serve only to confuse its readers and to mislead future courts. In sum, expanding the definition of "voluntary" seems to be nothing but a tautologic sleight-of-hand that hides the true basis for the suppression decision, Rule 5(a).*fn3
A more sophisticated version of the first mode of analysis has been adopted by the Seventh Circuit. In United States v. Gaines, 555 F.2d 618 (7th Cir. 1977), that circuit avoided the pitfalls of the Sixth Circuit's approach by recognizing both that there must be some circumstances in which delay in arraignment alone justifies suppression and that such suppressions must be grounded on the interests incorporated in Rule 5(a), not on the interest in preventing coerced confessions, see id. at 623-24. The court did not, however, hold that all unreasonable delays in arraignment (outside the safe harbor period) require suppression of the confession (the McNabb-Mallory rule), but rather held that whether delay warranted suppression depended upon "the exercise of such judicial discretion depending upon 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 the evidence would encourage violations of the Fourth Amendment." Id. at 623-24. The Seventh Circuit thus appears to have attempted to reconcile sections (a) and (c) through a compromise under which a Rule 5(a) violation alone may render a confession inadmissible, but does not necessarily do so.
The alternative approach to § 3501 recognizes that, while sections (a) and (c) are facially incompatible, they can best be understood by construing section (a) to address concerns regarding a confessor's free will and section (c) to address concerns regarding delay in arraignment. Such a construction is most consistent with the legislative history, which demonstrates: (1) that section (a) was enacted in light of congressional concern over the Supreme Court's holding in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 , 86 S. Ct. 1602 (1966), that confessions should be suppressed in certain circumstances without finding "the defendants' statements to have been involuntary in traditional terms," id. at 457. See United States v. Robinson, 439 F.2d 553, 562-63 (D.C. Cir. 1970); id. at 574 n.18 (McGowan, J., Dissenting); S. Rep. (Judiciary Committee) No. 1097, reprinted in 1968 U.S.C.C.&A.N. 2112, 2123-40, 2282,*fn4 and (2) that section (c) was appended to the statute to address the McNabb-Mallory rule, see 114 Cong.Rec. 14,184-86. Given this history, and the fact that pre-arraignment delay is the exclusive subject of section (c), the approach concludes that it is that section that incorporates Congress' intent with regard to the admission of confessions made during an unreasonable delay in arraignment. As the Second Circuit has stated it, the addition of subsection (c) on the Senate floor effectively codified a limited McNabb-Mallory rule. Stated another way, section 3501 legislatively overruled the McNabb-Mallory rule only to the extent of (1) unreasonable pre-arraignment, pre-confession delays of less than six hours and (2) reasonable delays in excess of six hours.
Perez, 733 F.2d at 1035. Accordingly, a confession outside of the section (c) safe harbor is subject to the McNabb-Mallory rule, which mandates exclusion if the delay in arraignment is unreasonable. This approach is recommended by most commentators, see, e.g., 3 J. Wigmore, Evidence § 862(a), at 623 (Chadbourn rev. 1970) (stating that § 3501 retains the McNabb-Mallory rule with regard to confessions obtained outside of the section (c) safe harbor); 8 J. Moore, Moore's Federal Practice Par. 5.02, at 5-13 - 5-15 (2d ed. 1992) (same), and has been adopted by the Second and District of Columbia Circuits, see Perez, 733 F.2d at 1035; United States v. Robinson, 439 F.2d 553, 563-64 (D.C. Cir. 1970).
The leading Ninth Circuit decision regarding pre-arraignment delay is United States v. Halbert, 436 F.2d 1226 (9th Cir. 1970), which bears some similarities to the Sixth Circuit's "expanded-voluntariness" approach. In Halbert, we stated that non-safe harbor confessions "are admissible if voluntary, although the trial Judge under subsection 3501(b) may take into account delay in arraignment in his determination of voluntariness." Id. at 1237. Halbert differed from the Sixth Circuit's approach in one important aspect, however. Although it attempted to incorporate pre-arraignment delay within a "voluntariness" determination, it recognized that "discretion remains in the trial Judge, under subsection 3501(b), to exclude confessions as involuntary solely because of delay in arraignment, during which a confession is given, that exceeds six hours." Id. at 1234. Our difference with the Sixth Circuit on this point sharpened as we reiterated our position on numerous occasions. See, e.g., United States v. Fouche, 776 F.2d 1398, 1406 (9th Cir. 1985) (stating that "the district court has the authority to exclude the [non-safe harbor] confession as involuntary, and may do so solely because of the pre-arraignment delay"); Manuel, 706 F.2d at 913 ("Section 3501(c), by implication, provides that unreasonable pre-arraignment delay can provide the sole basis for a finding of involuntariness, if the delay exceeds six hours."). Thus, in a series of cases we have made it clear that suppression can be based on concerns other than the confessor's free will, although we did not say so explicitly. Cf. United States v. Edwards, 539 F.2d 689, 691 (9th Cir.) (finding that a confession was "voluntary" because, inter alia, "the delay in arraignment was caused solely by a shortage of personnel and vehicles to transport the suspect a distance of 125 miles to Tucson, the situs of the nearest available magistrate"), cert. denied, 429 U.S. 984, 50 L. Ed. 2d 594 , 97 S. Ct. 501 (1976).
In United States v. Wilson, 838 F.2d 1081 (9th Cir. 1988), we solidified our approach by making explicit the purposes for which delay in arraignment is considered in a § 3501 suppression hearing. In Wilson, we reversed the district court and ordered suppression of a confession obtained during a lengthy pre-arraignment delay, a delay extended in part in order to allow police officers time to interrogate the defendant. In finding the confession inadmissible, we did not state that the confessor's will had been overcome, but rather ordered suppression because
the purposes embedded in § 3501 - to prevent confessions extracted due to prolonged pre-arraignment detention and interrogation, and to supervise the processing of defendants from as early a point in the criminal process as is practicable - are frustrated when the arraignment of a defendant who has been in custody for more than six hours is further delayed for no purpose other than to allow further interrogation of the defendant. If we countenance the police procedure followed here, we give officers a free hand to postpone any arraignment until a confession is obtained. That was not the legislative intent behind § 3501.
Id. at 1087 (emphasis added). Wilson thus makes explicit that a confession may be suppressed in order to serve the prophylactic purpose of discouraging officers from unnecessarily delaying arraignments (i.e., from violating Rule 5(a)) as well as to prevent admission of an involuntary confession. It also serves to bring us closest to the approach used by the Seventh Circuit.*fn5
Interestingly, despite our long line of cases following Halbert, we have never expressly chosen between an approach that requires suppression of non-safe harbor confessions if the court determines the delay to have been unreasonable (McNabb-Mallory) and an approach that allows admission of some non-safe harbor confessions given during an unreasonable delay in arraignment if the court believes that, on balance, suppression is not warranted. Although in Halbert we stated that the statute does not require that all confessions falling outside the safe harbor should be suppressed, see 436 F.2d at 1232-33, that statement does not resolve the question. McNabb-Mallory and Rule 5(a) only require the suppression of non-safe harbor confessions given during unreasonable delays in arraignment, not all non-safe harbor confessions.*fn6 Therefore, Halbert is not dispositive of the question whether the McNabb-Mallory bright line rule is applicable to non-safe harbor confessions.*fn7 Nevertheless, it is fair to state that most of our cases are more consistent with the Seventh Circuit balancing test than with the Second Circuit McNabb-Mallory bright line approach. Compare Gaines, 555 F.2d at 623 (7th Cir.) (asserting that its approach was consistent with Halbert) with Perez, 733 F.2d at 1033-34 (2d Cir.) (declining to follow Halbert but asserting that "the Ninth Circuit itself has not adhered consistently to the Halbert view").
There are at least two cases in which we followed the McNabb-Mallory approach. See United States v. Sotoj-Lopez, 603 F.2d 789 (9th Cir. 1979) (per curiam); United States v. Stage, 464 F.2d 1057 (9th Cir. 1972) (per curiam). In those cases, we suppressed non-safe harbor confessions on the basis of McNabb- Mallory without discussing Halbert. See Sotoj-Lopez, 603 F.2d at 790-91; Stage, 464 F.2d at 1057-58. On the basis of these post- Halbert cases, it might be possible to conclude either that the law of the Ninth Circuit is that McNabb-Mallory applies to non-safe harbor confessions or that we have an intra-circuit conflict. We need not resolve the matter, however, for we conclude that the confession before us must be excluded under either approach; thus resolution of any possible conflict is unnecessary. See United States v. Whitehead, 896 F.2d 432, 434 (9th Cir.), cert. denied, 112 L. Ed. 2d 306, 111 S. Ct. 342 (1990); United States v. Sotelo-Murillo, 887 F.2d 176, 179 (9th Cir. 1989). In addition, we note that the conflict may be more apparent than real. Under Sotoj-Lopez, a court examines the delay in arraignment (if it falls outside of the safe harbor) to determine if it is unreasonable; only if the delay is unreasonable does it exclude the confession. Under Halbert, a court considers the delay in arraignment (again assuming that it falls outside the safe harbor) to determine whether or not it is the sort of delay that warrants suppression in light of a number of factors, including the prophylactic purpose "embedded" in § 3501. See Wilson, 838 F.2d at 1086. A strong argument can be made that the second inquiry also hinges on whether the delay is reasonable - that Halbert-Wilson simply provides an explicit set of criteria for determining reasonableness. In any event, as we have stated, we will not resolve this question as we find the result in this case to be the same whether we rely on Halbert and Wilson or on Sotoj-Lopez.
In evaluating the admissibility of Alvarez-Sanchez's confession, we note that it did not occur during the § 3501(c) safe harbor period. It was obtained far longer than six hours after his arrest. Alvarez-Sanchez was taken into local custody on Friday, did not confess to federal authorities until Monday afternoon, and was not arraigned until Tuesday morning. Thus, the combined delay well exceeds the § 3501(c) six-hour safe harbor. See United States v. Fouche, 776 F.2d 1398, 1406 (9th Cir. 1985) ("pre-arraignment delay caused by local and federal officials should be considered cumulatively under section 3501(c)").*fn8 We find no reason for extending the safe harbor period as there was no claim of ...