Lead Opinion
OPINION OF THE COURT
Johnnie Corley appeals his conviction and sentence for armed robbery and conspiracy to commit that crime. He presses three arguments: (1) his conviction must be vacated because his confessions should have been suppressed as evidence because they were made outside the six-hour period in 18 U.S.C. § 3501(c) and after the arresting officials violated Federal Rule of Criminal Procedure 5(a) by unnecessarily delaying in bringing him before a federal magistrate judge; (2) remand is required because (a) he was sentenced prior to the United States Supreme Court’s decision in United States v. Booker,
Because we believe that the first contention is governed by our decision in Government of the Virgin Islands v. Gereau,
I. Facts
On June 16, 2003, three men robbed the Norsco Federal Credit Union in Norris-town, Pennsylvania. Federal officials identified Johnnie Corley as a suspect in the robbery and were later informed of an outstanding bench warrant from a state court for him on a matter unrelated to the robbery. On September 17, 2003, at approximately 8:00 a.m., a joint operation of federal and state law enforcement agents attempted to execute the arrest warrant. Corley resisted arrest and, following a physical altercation with an FBI agent during Corley’s attempt to flee, was placed under federal arrest for assault on a law enforcement officer.
At approximately 11:45 a.m., the officers transported Corley to Thomas Jefferson Hospital in Philadelphia to receive medical treatment for injuries sustained during the altercation. By 3:30 p.m., after receiving several stitches, Corley was taken to the FBI office in Philadelphia for interrogation concerning the Norristown credit union robbery. He was informed that he was under arrest for assaulting a federal officer and also was under investigation for a robbery. At 5:07 p.m., Corley signed a waiver of his rights, inter alia, to remain silent and to counsel under Miranda v. Arizona,
On November 20, 2003, a federal grand jury sitting in the Eastern District of Pennsylvania issued a three-count indictment against Corley, charging conspiracy to commit armed bank robbery in violation of 18 U.S.C. § 371 (Count One), armed bank robbery in violation of 18 U.S.C. § 2113(d) (Count Two), and the use and carrying of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c) (Count Three). Corley filed, and the District Court denied, a motion to suppress his oral and written confessions pursuant to Rule 5(a) of the Federal Rules of Criminal Procedure. After a jury trial
On December 21, 2004 — after the Supreme Court decided Blakely v. Washington,
[U]ntil I’m told otherwise by the Third Circuit o[r] the Supreme Court, [I] take the position that the guidelines are merely advisory and that for sentencing purposes I have the upper limit[,] which is the statutory max to zero[,] and that when I have to figure and fix a sentence, what’s on the table is all the conduct, prior history of this particular defendant, or any defendant that’s in front of me, and I take all that into account when I fashion my sentence.
J.A. 462. However, the District Judge rejected Corley’s argument that, after Blakely, any Guidelines enhancements must be specifically found by a jury beyond a reasonable doubt. After hearing the arguments of both parties, the Judge calculated Corley’s advisory Guidelines range to be 140 to 175 months, and sentenced him to 170 months in prison. Regarding restitution, the Judge stated:
The defendant shall make restitution to [Cumis Insurance, in] the amount of $47,532.36. The defendant shall make restitution and fine payments from any wages he may earn in prison in accordance with the Bureau of Prisons Inmate Financial Responsibility Program. The restitution and fines shall be due immediately. Any balance remaining upon release from custody shall be paid at a rate of no less than $100 per month.
In addition to the imprisonment and restitution, Corley received five years supervised release, a fine of $5,000, and a special assessment of $200. He timely appeals.
II. The Admissibility of Corley’s Confessions
The first issue in Corley’s appeal involves the permissible length of post-arrest investigation and delay before arresting officers must present the arrested person to a federal magistrate judge. It requires us to interpret 18 U.S.C. § 3501, which governs the admissibility in federal criminal prosecutions of confessions given by persons arrested and in federal custody. The statute was enacted as part of Title II of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, 210-11, and the interaction of that statute with the preexisting law governing such confessions raises difficult legal questions.
A. The Presentment Right and the Exclusionary Remedy
As a general matter, federal officials must take persons they arrest before a magistrate judge or other judicial officer without unnecessary delay. Before 1946, that obligation, known as “presentment,” appeared in several statutes. See McNabb v. United States,
[a]n officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States.
That rule now provides in relevant part that “[a] person making an arrest in the United States must take the defendant without unnecessary delay before a magistrate judge ... unless a statute provides otherwise.” Fed.R.Crim.P. 5(a)(1)(A).
Legislation such as this ... constitutes an important safeguard' — -not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the ‘third degree’ which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime.
Id. at 452-53 (quoting McNabb,
In McNabb and Mallory, the Supreme Court held that when federal officers violated an arrested person’s presentment right by delaying unnecessarily in taking him before a magistrate, the remedy is that confessions elicited from the arrested person before presentment could not be admitted into evidence at any subsequent criminal trial. Mallory,
B. 18 U.S.C. § 3501
Eleven years after the Supreme Court decided Mallory, and two years after it decided Miranda (requiring, inter alia, warnings to persons in custody of their constitutional rights as to statements made to police without counsel present), Congress passed the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, part of which was 18 U.S.C. § 3501. Courts, including ours, recognize that § 3501 was a legislative reaction to McNabb, Mallory, and Miranda. See Dickerson v. United States,
Subsection (a) of the statute provides that, in a federal criminal prosecution, “a confession ... shall be admissible in evidence if it is voluntarily given,” and that if a trial judge determines that a confession was voluntary, the jury must be allowed to hear relevant evidence on the issue of vol-untariness and to give the confession such weight as the jury believes it deserves.
Subsection (b) instructs the trial judge to determine the voluntariness of a confession by “takfing] into consideration all the circumstances surrounding the giving of [it].” This provision notes a nonexclusive list of the circumstances that a trial judge may consider, including “the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment,” and whether the defendant had been advised of his rights before making the confession.
Subsection (c) provides:
In any criminal prosecution by the [federal government], 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 judge or other officer ... 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 judge or other officer beyond such six-hour period isfound 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.
(bold emphases added). Some courts have read that language as providing a “safe harbor” for confessions within six hours after arrest and before presentment. See, e.g., United States v. Gamez,
C. Our Precedent Interpreting Rule 5(a) and 18 U.S.C. § 3501
The interaction between 18 U.S.C. § 3501 and Rule 5(a) raises several difficult legal questions that have divided Courts of Appeals. To resolve this case, we must determine how to reconcile the “voluntariness” test of § 3501 with the “unnecessary delay” standard of Rule 5(a), and we must interpret the statement in § 3501(c) that certain confessions “shall not be inadmissible solely because of delay.”
Our leading case addressing those questions is Gereau. Among the issues it addressed was the admissibility of defendant Gereau’s confession, which was given more than six hours after his arrest, but which the District Court found to be voluntary. In its exposition of the law, our Court, per Chief Judge Seitz, explained:
The [Federal] Rules [of Criminal Procedure] explicitly recognize that the admissibility of evidence in cases governed by the Rules is subject to determination by acts of Congress. Thus, 18 U.S.C. § 3501 controls the admissibility in prosecutions subject to the Federal Rules, of defendants’ statements made after arrest and before presentment to a magistrate, and must be viewed as altering [the] interpretation of Rule 5(a)’s direction that an arrested person be taken before a magistrate ‘without unnecessary delay.’
While the Federal Rules’ provision regarding presentation before a magistrate is ‘procedural,’ unlike the ‘substantive’ rule of § 3501, the sanction imposed by federal courts for failure to comply with Rule 5(a) is suppression of statements taken during the period of ‘unnecessary delay.’ Since § 3501 regulates suppression of such statements, it should be viewed as amending the meaning of ‘unnecessary delay’ as used in Rule 5(a), rather than leaving that term’s meaning unchanged and simply allowing the Rule to be violated without sanction.
Section 3501 makes admissibility of confessions dependent on their voluntariness. Delay in a defendant’s presentment to a magistrate is only one factor relevant to voluntariness. Section 3501(c) modifies the trial judge’s freedom to determine voluntariness by stating certain instances in which the judge cannot on the basis of delay alone find a statement to have been involuntary.Statements not within the categories defined in § 3501(c) are not excluded but instead their admissibility is determined by the general standard of voluntariness set forth in § 3501(a) and (b). As set forth above, defendants have not demonstrated clear error in the district court’s determination of voluntariness. We cannot, therefore, find that Gereau’s statements ... were improperly admitted.
Id. at 924 (citations omitted).
In Gereau, we read “shall not be inadmissible solely because of delay in bringing such person before a magistrate judge” in subsection (c) to refer to the voluntariness standard in subsections (a) and (b). That reading follows from the statement in subsection (a) that “a confession ... shall be admissible in evidence if it is voluntarily given.” Because subsection (a) makes vol-untariness the sole criterion for admissibility of a confession, and subsection (b) further supports the statute’s emphasis on voluntariness, it is certainly plausible to read the reference in subsection (c) to admissibility of a confession to refer to the voluntariness test. By our count, at least four other Courts of Appeals read the statute essentially the same way. See United States v. Glover,
Our statement in Gereau that § 3501 “amend[s] the meaning of ‘unnecessary delay’ as used in Rule 5(a)” meant that, in the context of deciding whether pre-pres-entment confessions given by defendants in federal custody are admissible at trial, § 3501 replaces the “unnecessary delay” standard with the voluntariness test in subsections (a) and (b) of the statute, in which the length and necessity of the presentment delay are factors in the analysis but not necessarily dispositive. The statute thus narrows the meaning of “unnecessary delay” by restricting it to delays that are part of making a defendant’s statements “involuntary.” In this vein, subsection (c) instructs courts that they may not find a confession involuntary “solely” because of the length of presentment delay where the confession is otherwise voluntary and where the delay is less than six hours (or longer than six hours but explained by transportation difficulties).
Under our reading of the statute, however, it is a misnomer to refer to the six-hour period in § 3501(c) as a “safe harbor,” for although it reduces the likelihood that confessions given within six hours of arrest will be suppressed, it does not allow the police to act unreasonably in the pursuit of a confession. Delays designed to convey to the arrested person the message that his rights will not be honored until he confesses will affect the voluntariness of a
The bottom line is this: if an arrested person is detained for a substantial amount of time, then the longer the delay continues, the more likely it becomes that the arrested person will feel improper pressure to confess. Cf. Bear Killer,
D. Corley’s Arguments and the Law in the Second, Ninth, and D.C. Circuits
As explained above, our reading of the statute in Gereau begins with the language in subsection (a) that “a confession ... shall be admissible in evidence if it is voluntarily given,” and reads the remainder of the statute in the context of that language. It therefore follows that “shall not be inadmissible solely because of delay in bringing such person before a magistrate judge” in subsection (c) refers to the voluntariness standard in subsections (a) and (b).
Corley disputes that reading, noting that three other Courts of Appeals — those in the Second, Ninth, and D.C. Circuits— understand that phrase in subsection (c) to refer to the McNabb-Mallory rule.
Courts adopting that reading support it with three principal arguments. First, to read the statute to hold that voluntariness is the sole criterion for admissibility of a confession, those courts argue, is to subject all confessions to the same test for admissibility, thus making subsection (c) redundant of subsection (a) and rendering the six-hour period superfluous. See Alvarez-Sanchez,
Second, these courts assert, subsection (a), read literally — ie., that confessions offered into evidence are subject to no constraints whatsoever other than volun-tariness — is inherently implausible. For example, no court to our knowledge has suggested that Congress meant to create a blanket exception to the Federal Rules of Evidence for voluntary confessions. Courts have therefore looked to the statute’s purpose and legislative history to discern a reasonable limit for the scope of that provision. That legislative history suggests that subsection (a) was primarily meant to overrule Miranda, and that subsection (c) — and only subsection (c) — was meant to limit McNabb-Mallory. See Alvarez-Sanchez,
Third, there is no necessary correlation between the Government’s reasons for a presentment delay and the voluntariness of a confession. Alvarez-Sanchez,
Our dissenting colleague cogently argues that the Second, Ninth, and D.C. Circuit Courts have the better of the argument regarding the proper interpretation of § 3501. Were we writing on a clean slate, we might agree. As explained above, however, our Court has already resolved these issues in Gereau.
The primary basis on which Corley would have us distinguish Gereau is that it relied for its holding on Second and Ninth Circuit precedent, which the Courts of Appeals in those Circuits have since repudiated.
******
In this case, the District Court found that although the police officers questioned Corley before presenting him to a magistrate judge, and although part of the delay in presentment was for the purpose of getting Corley to confess, his confessions were voluntarily given. Corley does not seriously dispute that finding, and we dis-
cern no error in it. Following Gereau, we must therefore affirm Corley’s conviction.
III. Sentence
Corley argues that he is entitled to a remand for resentencing for two reasons: (1) he was sentenced before the Supreme Court decided Booker, and our decision in United States v. Davis,
A. The Validity of Corley’s Sentence Under Booker and Davis
In Blakely v. Washington,
Within months after the Supreme Court decided Booker, we explained in Davis that “[d]ireet appeals of sentences imposed before Booker generally present two kinds of claims: first, defendants whose sentences were enhanced by judicial factfind-ing raise Sixth Amendment claims; second, defendants who contend the District Courts erroneously treated the Guidelines as mandatory rather than advisory.”
By contrast, “where ... a District Court clearly indicates that an alternative sentence would be identical to the sentence imposed under the Guidelines, any error that may attach to a defendant’s sentence under Booker is harmless.” United States v. Hill,
Corley contends, however, that the District Court’s explanation is lacking because it did not cite 18 U.S.C. § 3553(a)
The Supreme Court explained recently that when a district court imposes a sentence within the advisory Guidelines range, the requirement in 18 U.S.C. § 3553(c) that a sentencing judge give a statement of reasons should not be read “as insisting upon a full opinion in every case.” Rita v. United States, — U.S. -,
In this case, we are satisfied that the record the District Court made at sentencing meets that standard and reflects that it gave appropriate consideration to Corley’s arguments and to the information before it. For that reason, and for the reasons noted above, we reject Corley’s argument that he is entitled to a remand under Davis.
B. Whether the District Court Failed to Resolve a Disputed Firearm Objection
Federal Rule of Criminal Procedure 32(i)(3)(B) provides that the sentencing court “must — for any disputed portion of the presentence report or other controverted matter — rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.” The purpose of the Rule is to “ensure that the defendant’s sentence is based on accurate and reliable information and that subsequent recipients of the report are aware of whatever resolutions occurred at sentencing.” United States v. Rosa,
In this case, Corley contends that the District Court failed to rule expressly on whether he merited a three-level or a five-level enhancement under U.S.S.G. § 2B3.1(b)(2). That provision of the Guidelines calls for a five-level enhancement to the defendant’s base offense level “if a firearm was brandished or otherwise possessed,” but for a three-level enhancement “if a dangerous weapon was brandished or possessed.” Id. §§ 2B3.1(b)(2)(C), (E) (emphases added). The transcript of the sentencing hearing shows unambiguously, however, that the District Court found that Corley possessed
Both Corley and the Government indicated that they had no objection to the narrative portion of the presentence report. J.A. 461. As for the calculation of Corley’s advisory Guidelines range, the parties disputed two matters: (1) whether to enhance Corley’s offense level by two levels under § 3C1.2 for having endangered his daughter while resisting arrest, and (2) whether to enhance the offense level by five or three levels under § 2B3.1(b)(2). The Government’s position at sentencing was that Corley’s offense level should be 30, reflecting a two-level enhancement under § 3C1.2, and a five-level enhancement under § 2B3.1(b)(2). Corley responded that his offense level should be 26, reflecting no enhancement under § 3C1.2 (as his conduct in endangering his daughter was taken into account at his sentencing in a separate case for assaulting a federal officer), and a three-level enhancement under § 2B3.1(b)(2), because the jury acquitted him of the charge of carrying a firearm in furtherance of a drug trafficking crime, and there was scant evidence that he possessed a firearm instead of merely a dangerous weapon.
The Government responded:
There’s 3 reasons why. The conspiracy liability theory, the testimony of the employees of the credit union, and the defendant’s own statement.
J.A. 475. The District Court resolved both disputes by stating:
If I were to apply the guidelines I will tell you right now[,] based on the defendant’s statements or written statements, the testimony in court, I would have — I would find that he’s a category 6 and a level 28. I would not give him the 2 extra points on the fleeing because I think that was taken into account by Judge Bartle on his prior sentence. So as far as I’m concerned if I were to use the guidelines, he’d be a category 6, level 28,140 to 175 [months].
J.A. 480-81 (emphasis added). In the second sentence of the quoted passage, the District Court unmistakably resolved the issue of the § 3Cl.2 enhancement in Cor-ley’s favor. The remainder of the quoted passage, read in the context of the discussion preceding it, reflects that the Court decided the § 2B3.1(b)(2) enhancement against Corley, finding that he possessed a firearm instead of a dangerous weapon. We therefore hold that the District Court did not fail to comply with Fed.R.Crim.P. 32(i)(3)(B).
IV. Restitution
The final issue we address is whether the District Court impermissibly delegated to the Bureau of Prisons its duty under § 206 of the MVRA, 18 U.S.C. § 3664(f), to set the manner and schedule of restitution payments during Corley’s imprisonment. Though what the District Court did here makes sense practically, it runs afoul of prior precedent of our Court and the language of the MVRA. We therefore order a limited remand so that the District Court can set a restitution schedule.
In its sentencing order, the District Court ordered Corley to pay $47,532.36 (the amount of money taken in the credit
Regarding the schedule of payments for restitution and the fíne, however, the Court ordered “[p]ayment to begin immediately,” subject to the following additional instructions:
The defendant shall make restitution and fine payments from any wages he may earn in prison in accordance with the Bureau of Prisons Inmate Financial Responsibility Program. The restitution and fíne shall be due immediately. Any balance remaining upon release from custody shall be paid at a rate of no less than $100.00 per month.
J.A. 15. Corley argues that the first sentence quoted above constitutes an impermissible delegation of authority to the Bureau of Prisons.
18 U.S.C. §§ 3556, 3663A(a)(l), in the MVRA require district courts to order restitution for certain crimes, including those — such as Corley’s — “in which an identifiable victim or victims has suffered a physical injury or pecuniary loss.” Id. § 3663A(e)(l)(B). The court may not consider the defendant’s economic circumstances when it calculates the amount of restitution, id. § 3664(f)(1)(A), but after setting the amount, the court “shall, pursuant to section 3572,
In our decisions interpreting the MVRA, we have held that the plain language of section 3664(f) — stating that “the court shall” order restitution and specify the manner and schedule of payments — means that ordering restitution is a judicial function that cannot be delegated, in whole or in part. United States v. Coates,
Other courts of appeals have found impermissible delegations of authority under similar circumstances. See, e.g., United States v. Gunning,
We are compelled by our holding in Coates to find that there was an impermissible delegation here. Although the District Court discharged its responsibility to fix the amount of restitution and the schedule of payments once Corley is released, by its terms the order delegates to the Bureau of Prisons the task of determining how Corley will pay his obligations while he is in prison. As such, we must order a remand.
Against that conclusion, the Government argues that the District Court’s order was proper because it ordered that “[t]he restitution and fines shall be due immediately.” Because the MVRA permits sentencing courts to order immediate payment, rather than payment on an installment schedule, the Government argues, the District Court may order immediate payment with the understanding that the defendant will make payments to the extent he can in good faith. The Bureau of Prisons may permissibly ensure through the Responsibility Program that the defendant makes satisfactory progress toward his obligations while he is in prison.
A judgment in civil litigation specifies the amount due without elaboration. If immediate payment proves impossible, accommodation will occur in the course of collection. A judgment creditor will garnish the judgment debtor’s wages and collect incrementally, even though the court has not said a word about installments. Just so with criminal restitution. If the sentence specifies the amount of restitution, without elaboration, and makes payment a condition of supervised release, the probation officer will assess the defendant’s progress toward satisfaction of his debt, and if the defendant is not paying what he can the probation officer will ask the judge to revoke or alter the terms of release. Then the judge may make the order more specific or, if the defendant has not paid back what he could in good faith, may send him back to prison. Everything works nicely without any effort to establish installments on the date of sentencing and without delegating a judicial function to the probation officer.
Ahmad,
In this case, the presentence report— which the District Court adopted — reflected that Corley was indigent and that
[I]f the statute does not permit delegation to the probation office, we cannot endorse a restitution order requiring “immediate” payment with an informal understanding that the probation office shall set a payment schedule. Obviously, the availability of such an option would in practice defeat the statutory requirement that the court establish any installment schedule.
United States v. Prouty,
We understand that our result may cause practical difficulties for district courts in the future. In this case, the District Court had a limited amount of information before it at the time of sentencing, and could not predict with any certainty whether Corley would choose to participate in the Responsibility Program, how much he would earn if he participated, or when he would be paid. It is therefore difficult to fault the Court for linking Cor-ley’s payment schedule to the contingency of his earning wages in prison.
The District Court is not completely without assistance at the time of sentencing, however. To aid it in setting an appropriate payment schedule, § 3664(a) and Fed.R.Crim.P. 32(c)(1)(B), (d)(2)(B) contemplate having the probation office investigate various circumstances pertinent to restitution, including the defendant’s economic situation, and to report its findings in the presentence report. Section 3664(d)(3) requires defendants to prepare and file with the probation officer an affidavit detailing their financial resources.
As Judge Hodges noted in Prouty, those statutory provisions do not solve the problem completely, and finding an impermissible delegation under the circumstances of this case may seem illogical or at least inefficient:
[T]o my mind, that prohibition is entirely illogical when one considers that in many cases — where the defendant has no presently discernable assets and a lengthy term of commitment is imposed — there will be little or no factual basis upon which to fashion a reasoned payment schedule of any kind. To delegate oversight of the payment protocol to the probation officer, amenable to adjustment over time and subject always to judicial approval, would make perfectly good sense. I acknowledge, however, that the statutory scheme also supplies one apparent solution to this problem by (a) providing in 18 U.S.C. § 3664(f)(3)(B) that the court may direct “nominal periodic payments;” and by (b) providing in 18 U.S.C. § 3664(k) that the court may “adjust the payment schedule, or require immediate payment in full, as the interests of justice require” upon learning ... that there has been “a material change in the defendant’s economic circumstances.” Thus, in a case like this one, the sentencing court could elect to impose nominal payments during the period of incarceration and thereafter until such time as the court is notified ... that there has been a change in the defendant’s ability to pay.
Y. Conclusion
Following our decision in Gereau, we hold that the admissibility of Corley’s confessions depends on whether they were voluntary within the meaning of § 3501(a)-(b). Finding no error in the District Court’s conclusion that the confessions were voluntary, we uphold its decision to allow them into evidence at Corley’s trial, and we affirm Corley’s convictions.
We also hold that Corley is not entitled to a remand for resentencing under our decision in Davis because the District Court correctly treated the Guidelines as advisory and provided a sufficient explanation for the sentence it imposed. In addition, Corley is not entitled to a remand under Fed.R.Crim.P. 32(i)(3)(B) because the District Court did not fail to resolve his objection to the proposed enhancement under U.S.S.G. § 2B3.1(b)(2) in calculating his sentencing range.
Finally, the District Court impermissibly delegated its duty under the MVRA to schedule restitution payments to the Bureau of Prisons (and, in doing so, did not consider Corley’s economic circumstances). We therefore remand for the Court to set that schedule under 18 U.S.C. § 3664(f).
Notes
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
. The term “magistrate” was substituted for "commissioner” in the 1972 amendments to the Rule to conform to the Federal Magistrates Act. See Fed.R.Crim.P. 5, Advisory Cmte Notes. In 2002, Rule 5(a) was amended in several respects, including dividing it into subsections and inserting the phrase "unless a statute provides otherwise.” The Advisory Committee Notes indicate that this phrase was added to Rule 5(a)(1)(B) — which deals with arrests made outside the United States — "to reflect recent enactment of the Military Extraterritorial Jurisdiction Act (Pub.L. No. 106-523, 114 Stat. 2488) that permits certain persons overseas to appear before a magistrate judge by telephonic communication.” As we will explain in further detail, infra § II.C., our Court has interpreted 18 U.S.C. § 3501 "as amending the meaning of ‘unnecessary delay’ as used in Rule 5(a), rather than leaving that term's meaning unchanged and simply allowing the Rule to be violated without sanction.” Gereau,
. In Dickerson v. United States, the Supreme Court understood subsections (a) and (b) as an effort to overrule Miranda by making vol-untariness the sole test for admissibility of a confession and by making the presence or absence of Miranda-type warnings merely a factor in the voluntariness analysis.
. In his brief, Corley refers us to the Eighth Circuit Court’s statement in United States v. Hornbeck,
. The Seventh Circuit Court has taken an alternative approach, which we will not discuss at length, holding that a trial judge has discretion whether to suppress confessions elicited outside of the six-hour period. United States v. Gaines,
. A District Court in our Circuit has made that argument as well. See United States v.
It is true that the Courts of Appeals for the Second and Ninth Circuits revised their readings of § 3501 without sitting en banc, but they did so against what those Courts viewed as a backdrop of circuit precedents that pointed in opposite directions. See Alvarez-San-chez,
At oral argument, Corley also suggested that Gereau might be distinguished on its facts because in that case there was no allegation that the law enforcement officers deliberately delayed presenting Gereau to a magistrate judge for the purpose of extracting a confession. We are not persuaded. The Gereau panel directly addressed the question of how 18 U.S.C. § 3501(c) applies to pre-presentment confessions elicited outside of the six-hour period between arrest and presentment, and held that those confessions are subject to the "voluntariness” test in subsections (a) and (b) of the statute.
. In light of our holding, it is unnecessary for us to address the District Court’s holding that Corley's oral confession should be treated as having been made within six hours of arrest. Although that conclusion is contrary to the text of the statute — which provides that the only reasons for extending the six-hour period are those relating to transportation or to the availability of a magistrate judge or other officer — we understand the District Court to have held that both of Corley’s confessions were voluntary. The second confession was clearly made more than six hours after arrest, and the District Court held that the delay in presentment still did not render Corley's confession involuntary.
. We do not understand Corley to allege the first type of error, but to the extent that he does, that argument cannot succeed because his sentence was below the statutory maximum authorized on the basis of the facts found by the jury. See Booker,
. As noted, Corley argued at sentencing that Blakely precluded the District Court from applying any Guideline enhancements predicated on facts not specifically found by the jury, and that his base offense level was therefore 21. J.A. 464-65, 474. Once the District Court rejected that argument, however, Cor-ley’s position was that his base offense level should be 26. J.A. 474.
. The $200 special assessment was mandatory under 18 U.S.C. § 3013(a)(2)(A). See PSR at 15, ¶ 68.
. In the Statement of Reasons, it checked a box indicating that it adopted the presentence report, with the only change being that "Blakely v. Washington was applied.” In evaluating whether the District Court's order complied with 18 U.S.C. § 3664(1), we may therefore look to the statements in the presen-tence report that it adopted. United States v. Lessner,
. The presentence report states that "[a] nationwide search for assets was negative,” Corley had no credit history, and that social security records reflected no income for him during seven of the previous eleven years and a total of approximately $5,600 during the other four years. PSR at 12-13, 1ÍV 53-55.
. Although the presentence report notes that Corley did not file the affidavit required under 18 U.S.C. § 3664(d)(3), and states that "it should be assumed that the defendant has the financial wherewithal to pay a fine within the guideline range, as he has not established an inability to do so,” PSR at 13, ¶ 54, the probation office appears to have concluded on the basis of its own investigation that Corley could not pay a fine within the Guideline range. PSR at 13, ¶ 56.
. 18 U.S.C. § 3572(d)(1) provides that a defendant sentenced to pay a monetary penalty "shall make such payment immediately, unless, in the interest of justice, the court provides for payment on a date certain or in installments.” If the sentencing court allows the defendant to defer payment in any way, "the length of time over which scheduled payments will be made shall be set by the court, but shall be the shortest time in which full payment can reasonably be made.” Id.
. See United States v. Jackson-El,
. It appears from the presentence report that the Bureau of Prisons enjoys relatively little discretion under the Responsibility Program. According to the presentence report, Corley would likely earn approximately $300 per year in prison, of which the Bureau of Prisons would apply a minimum of $100 and a maximum of 50% toward Corley's restitution payments. Fifty percent of $300 is $150, so to the extent that the District Court's order delegated any responsibility to the Bureau of Prisons, that delegation likely consists only of allowing the Bureau to decide precisely what amount between $100 and $150 per year Cor-ley should pay toward his total obligation of $48,200.36.
The Eighth Circuit Court has approved of a restitution order under similar circumstances, where the district court ordered that, during the defendant’s incarceration, restitution would be paid "on an installment basis in the way the Bureau of Prisons handles this through its Inmate Financial Responsibility Program at the rate of no less than 50% of the funds available to defendant during incarceration.” United States v. Vanhorn,
Dissenting Opinion
dissenting.
The principal issue on this appeal, the amount of time that may elapse before the
The District Court concluded that federal law enforcement officers did not unreasonably delay in presenting the appellant, Johnnie Corley, to a federal magistrate judge and it therefore denied Corley’s motion to suppress the two statements Corley made before he was brought to the magistrate judge. Because I believe that the majority decision is inconsistent with two Supreme Court decisions that remain viable and precedential and that the majority erroneously interprets the statute enacted after those decisions in a manner that renders much of the statutory language superfluous, I dissent. The majority suggests that my reading of the statute, which accords with that of the Courts of Appeals for the Second, Ninth, and D.C. Circuits, might be the better interpretation of the statute, see Maj. Op. at 219, but believes we are bound by one sentence in an earlier opinion. If that is so, it may be appropriate to consider the issue en banc. It is important not only to Corley
I.
A defendant’s right to presentment before a neutral judicial officer after the defendant’s arrest was first considered by the Supreme Court in McNabb v. United States,
They were interrogated sporadically over several days and confessed before being brought before a United States commissioner or a judicial officer some days later.
Justice Frankfurter stated, “[plainly, a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices in wilful disobedience of law.” Id. at 345,
The advisory committee on the Federal Rules of Criminal Procedure did not immediately codify the McNabb decision, as there was significant debate as to the extent of the holding. See 1 Wright, Fed. Prac. & Pro. § 72, at 119-23. In 1946, more than a decade after the McNabb decision, Rule 5(a) of the Federal Rules of Criminal Procedure was finally adopted. Professor Wright states that “[t]he requirement of Rule 5(a) that an arrested person be taken before the commissioner — or magistrate judge as he is now called — -‘without unnecessary delay’ was once the most controversial provision of the Criminal Rules.” Id. at 117. That Rule now provides that “[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, or before a state or local judicial officer as Rule 5(c) provides, unless a statute provides otherwise.” Fed.R.Crim.P. 5(a)(1)(A) (emphasis added). The advisory committee’s note explains that this language “reflects the view that time is of the essence.” Fed. R.Crim.P. 5 advisory committee’s note.
Shortly after the adoption of Rule 5(a), the Supreme Court confirmed that confessions obtained when a defendant was not brought promptly before a committing magistrate are inadmissible under the McNabb rule. See Upshaw v. United States,
Professor Wright notes that even after the Upshaw decision, “the lower courts continued to be uncertain about the reach of the exclusionary rule, and were reluctant to believe that mere delay in bringing a defendant before a commissioner could, without more, prevent use of a confession obtained in the interim.” 1 Wright, Fed. Prac. & Pro. § 72, at 124. The decision in Mallory v. United States,
The police may not arrest upon mere suspicion but only on “probable cause.” The next step in the proceeding is to arraign the arrested person before a judicial officer as quickly as possible so that he may be advised of his rights and so that the issue of probable cause may be promptly determined. The arrested person may, of course, be “booked” by the police. But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt.
Id. at 454,
The Court noted that an earlier arraignment
It should be noted that the defendants in McNabb, Upshaw, and Mallory had not been advised of their rights. Those cases were all decided before the Supreme Court’s decision in Miranda v. Arizona,
After the Mallory decision, Congress turned its attention to the issue of pre-presentation delay and, in particular, to the admissibility of confessions by detained arrestees who were not brought before a judicial officer without unreasonable delay. In the original draft of what was later enacted as Title II of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 3501-3502, voluntariness was the only criterion for admission of such confessions. See United States v. Supervine,
18 U.S.C. § 3501(a) provides that “In any criminal prosecution brought by the United States or by the District of Columbia, a confession ... shall be admissible in evidence if it is voluntarily given.”
Finally, subsection(c), the section of principal relevance to us today, provides a safe harbor, stating, in relevant part:
In any criminal prosecution by the United States ..., 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 or other officer empowered to commit persons charged with offenses against the laws of the United States ... 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.
18 U.S.C. § 3501(c) (emphasis added).
As the court aptly noted in Superville, “Congress flatly refused to ‘overrule’ McNabb or Mallory .... and 18 U.S.C. § 3501(c) only excised the first six hours after arrest or detention from the scope of the McNabb-Mallory exclusionary rule.”
The majority chooses not to dispute Cor-ley’s argument that the District Court erred in concluding that the agents’ interrogation was within that six-hour safe-harbor period. See Maj. Op. at 220 note 7. As the majority opinion notes, Corley was arrested at 8:00 a.m. and was taken to the Sharon Hill police station for processing. He was then escorted at approximately 11:45 a.m. from the police station to the hospital where he was admitted at 12:12
It is evident that Corley’s first confession was not made within six hours of his arrest as that period expired at 2:00 p.m. In reaching its conclusion that Corley’s confession fell within the safe-harbor period, the District Court excluded the time during which Corley was treated at the hospital. There is no legal basis for that exclusion. The statute does not provide an exception for emergency visits to the hospital.
The District Court also stated that the delay in presenting Corley to the Magistrate Judge was not “unnecessary” for the purposes of Rule (5)(a) because Corley requested the break after beginning his confession. App. at 6. Once again, there is no statutory provision that time requested by the defendant should be excluded from the six-hour safe harbor. Indeed, at the argument before us the government retreated from the position taken in its brief and conceded that the District Court erred in concluding that the statement was made within the safe harbor. I therefore believe that the safe-harbor period should be deemed expired. The remaining question, therefore, is whether Corley’s confession was nonetheless admissible.
The majority adopts the government’s argument that even if the confession was not forthcoming within the six-hour safe-harbor period provided in 18 U.S.C. § 3501(c), Corley’s confession was admissible because it was voluntary.
I find irrefutable Corley’s argument that if a confession only had to be voluntary to
The government did not provide a persuasive response to this court’s question at oral argument: “If (a), which talks about voluntariness, is it, why don’t you just stop there? Why did they do a (c) where they talk about a safe harbor for delay? Why is there a (c) at all?” Mar. 6, 2007 Oral Argument Tr. at 33. The government’s only response was to refer us to a statement in our opinion in Gov’t of the V.I. v. Gereau,
The opinion of this court covered a wide range of issues. Most of the opinion addressed the validity of the searches and the failure to suppress the evidence seized, but it also covered the initial warrantless arrest of defendant Gereau, the sufficiency of the evidence, the motions to disqualify the trial court, a challenge to a juror for bias, the trial court’s instructions to the jury regarding the voluntariness of the confessions and continuing deliberations, and the sentencing. Gereau,
The opinion then reviewed the requirements of the safe-harbor provision as set forth in 18 U.S.C. § 3501(c), which it summarized by stating that the “express declaration of § 3501(c) makes clear that a statement voluntarily given within six hours of arrest is not excludable because of delay in presentment after the statement was given.” Id. at 924. The court declined to draw the negative implication that statements given before presentment but more than six hours after arrest must be excluded unless due to transportation problems, and then stated, in the two sentences on which the government places its entire reliance, “Section 3501 makes admissibility of confessions dependent on their voluntariness. Delay in a defendant’s presentment to a magistrate is only one factor relevant to voluntariness.” Id.
If the majority is correct that “subsection (a) makes voluntariness the sole criterion for admissibility of a confession,” Maj. Op. at 217, notwithstanding the length of the delay before the defendant is presented to the magistrate judge, not only would subsection (c) be superfluous, as many courts have noted, but the Gereau court’s own preceding analysis would have been superfluous. In that discussion, only several paragraphs before the sentences at issue, the Gereau court stated “in determining voluntariness the trial judge shall take into consideration all relevant circumstances including the time [elapsing] between arrest and arraignment (where, as here, the challenged statements were made within that time) ....” Id. at 923. A subsequent sentence clarifies that “within that time” refers to the safe-harbor period. Id. Because the court omitted from its definition of voluntariness consideration of whether the defendant’s statement was made beyond the six-hour safe-harbor period, it would be inconsistent to interpret the opinion as holding that volun-tariness alone supports admission of a confession made beyond the safe-harbor period. I decline to take the one sentence relied on by the majority out of context.
In its statutory analysis, the majority completely overlooks the significance of the statutory “and” in subsection (c) which, focusing on the relevant language, states that a confession “shall not be inadmissible solely because of delay” in presentment if such confession is found “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.” 18 U.S.C. § 3501(c) (emphasis added). If voluntariness is all, I ask the majority, how does it explain the “and” which explicitly makes admissibility of a confession dependent on
A plausible explanation for the inexplicable statement in Gereau was provided by the court in Superville,
Similarly, the Gereau opinion cited United States v. Halbert,
The enactment of § 3501 does not displace Rule 5(a) and therefore the standard established in Rule 5(a) that an arrestee must be taken to a magistrate judge “without unnecessary delay” remains effective. The courts have generally equated “unnecessary” to “unreasonable,” and I would do the same, noting that § 3501 also uses “reasonable” as a standard. The District Court found that the delay in presenting Corley to a magistrate judge was not “unnecessary” or “unreasonable.” App. at 7. Nothing in the record supports such a finding.
Because I have already discussed, and rejected, the government’s contention that the time for Corley’s hospital visit should be deducted from the six hours provided by the statute as a safe harbor, I must next consider the separate question whether the time spent in connection with Cor-ley’s hospital visit renders the delay in
Even if the delay in Corley’s presentment was required because of his need to get medical treatment, the government has not explained why it did not bring him to the hospital earlier in the day or why it could not have presented Corley to a nearby magistrate judge immediately following his discharge from the hospital. The government does not suggest, nor could it, that there were no magistrate judges available. At the time of his arrest, the chambers of the magistrate judges and their courtrooms were in the same building as the offices of the FBI.
One of the reasons, and apparently the only reason, for the delay following Cor-ley’s hospital discharge was candidly given by one of the arresting officers. Trooper D’Angelo testified:
Q [W]as Mr. Corley taken before a Federal Magistrate to be advised of the complaint against him for the assault of the Federal Officer ... ?
A Not ... on the 17th of September, no.
Q ... Instead what happened was you stated your desire to Mr. Corley that you wanted to question him about his participation in this bank robbery, is that a fair statement?
A Yes, we al — yes.
App. at 78. In response to the question whether he wanted Corley to confess to the robbery, D’Angelo answered: “Absolutely.” App. at 92.
The desire to exact a confession is neither an accepted nor an acceptable excuse for the failure to take a defendant to a magistrate judge. Congress provided law enforcement authorities a window consisting of the six-hour safe-harbor period during which they may interrogate the defendant at will and attempt to persuade him or her to provide information about the alleged crime. But if they exceed the six-hour period, and fail to transport the defendant to a magistrate judge, they may not avoid the sanction of suppression of the confession on the ground that they were merely developing the required evidence. See Ricks v. United States,
The Supreme Court was explicit on this issue in its decision in Mallory, where it stated that any necessary delay in presentation “must not be of a nature to give
Corley’s counsel argued that the confession was the only evidence presented against Corley. The government has not made its position on that fact explicit. If we were to remand, as I would do, I would leave that determination to the District Court on remand.
I recognize that law enforcement officials and government lawyers may believe that once a defendant is brought before a magistrate judge, the defendant will decline to make a statement (in the vernacular, “lawyer up”). The possibility of that result is no reason to forgo the important function served by the magistrate judge in advising the defendant of his or her rights. The Miranda rule requires the arresting officers to provide that information, but the legal rules have been formulated to place more reliance on the statement of rights given by a neutral magistrate judge.
Suppression of the evidence of a confession may lead to the frustrating outcome, in some cases, of overturning a conviction. In McNabb, the Supreme Court ordered the suppression of the confessions of defendants who murdered a federal officer. In Mallory, the Supreme Court ordered the suppression of the confession of a defendant who was sentenced to death for rape. We can do no less in the case of a convicted bank robber. As the Court in McNabb stated, “[jjudieial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence.”
II.
For the reasons set forth above, I dissent from the majority’s judgment affirming the decision of the District Court.
. Corley argues, and the government does not disagree, that there is no evidence independent of the confession of Corley's guilt.
. I accept the majority's statement of the facts, I limit my discussion to the legal issue.
. The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
.Justice Reed noted in his dissenting opinion that the record did not establish when the petitioners were taken before a committing magistrate. Id. at 349,
. The Wright treatise suggests that the term "arraignment” is more properly confined to the proceeding covered in Rule 10 when defendant is read the charges and enters a plea, but it slates that "the other usage has now become so common that there is little likelihood it will be abandoned.” 1 Charles Alan Wright, Fed. Prac. & Pro. § 71, at 115.
. Subsection (a) provides in full: “In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge deter
. Subsection (b) provides in full: "The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession.
The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession.”
. Even were the time spent receiving medical treatment excluded in calculating the expiration of the safe-harbor period, the confession would nonetheless fall outside that period. The District Court excluded the twenty-seven minute period — 11:45 a.m. to 12:12 p.m. — necessary to transport Corley from the police station to the hospital. Because the hospital is less than a mile away from the F.B.I. office where Corley was taken, the agents would have traveled approximately the same distance over approximately the same lime period.
. The Assistant U.S. Attorney stated: "things may not be able to happen in six hours and that's why 3501 makes admissible confessions dependent on their voluntariness." Mar. 6, 2007 Oral Argument Tr. at 33.
. The court remanded for reconsideration of the trial court’s denial of defendants' motion for a new trial, and directed the trial court to review the record of the hearing under a de novo standard.